Successors and Assigns; Participations and Assignments. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, all future Noteholders and their respective successors and assigns permitted hereby, except that the Issuer may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6. (b) Any Noteholder may, without the consent of the Issuer, assign or transfer to one or more assignees that is a Permitted Transferee (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 2 contracts

Samples: Secured Note Agreement (General Motors Co), Secured Note Agreement (General Motors Co)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Arrangers, the Agents, the Managers, the Managing Agents, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and ~~any attempted assignment~~ each Lender. No Lender may assign its rights and obligations under this Agreement, except as provided in this Section 10.6. Any purported sale, assignment, participation or other transfer by ~~the Issuer without such consent~~ any Lender of any of its rights or obligations hereunder, other than as expressly permitted under this Section 10.6, shall be null and ~~void)~~ void and of no ~~Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~force and effect. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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, the Arrangers, the Agents, the Managing Agents and the Managers 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided, that, in the case of Section 2.20, such Participant shall have fully complied with the requirements of Section 2.20 and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to Section 2.19, 2.20 or 2.21 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to the Borrower (only in connection with a Permitted Loan Repurchase), any Lender, any Affiliate of the assigning Lender or of another Lender or any Affiliated Fund of the assigning Lender or of another Lender (provided, that if any funding obligations are assigned to such an Affiliate or such an Affiliated Fund, such Affiliate or Affiliated Fund, as applicable, shall have demonstrable resources to comply with such obligations) or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit 1 Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in the case of the Borrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld, conditioned or delayed), to an additional bank, financial institution or other entity that is an Eligible Assignee (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an assignment and acceptance agreement, substantially in the form of Exhibit E hereto or such other form as shall be approved by the Administrative Agent (such approval not to be unreasonably withheld) (an “Assignment and ~~Assumption or similar agreement which includes an agreement~~ Acceptance”; provided, that to the extent approved by the ~~assignee thereunder~~ Administrative Agent, an Assignment and Acceptance may be electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent, which shall initially be ~~bound by~~ the ~~terms and provisions~~ settlement system of ~~the Intercreditor Agreement~~ClearPar, LLC), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided, ~~together~~ that no such assignment to an Assignee (other than the Borrower (in connection with a Permitted Loan Repurchase), any ~~related~~ Lender or any Affiliate of the assigning Lender or of another Lender or Affiliated Fund of the assigning Lender or of another Lender) shall be in an aggregate principal amount of less than $5,000,000 with respect to Revolving Credit 1 Commitments or Revolving Credit 2 Commitments or $1,000,000 with respect to Term Loan Commitments or Term Loans, unless otherwise agreed by the Borrower and the Administrative Agent (provided, that for purposes of the foregoing limitations only, any two or more funds that concurrently invest in Loans and are managed by the same investment advisor, or investment advisors that are Affiliates of one another, shall be treated as a single 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 Acceptance, (x) the Assignee thereunder (unless such Assignee is the Borrower) shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section 10.6(c), the consent of the ~~United States; provided that~~Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 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 ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender’s Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment by the ~~Issuer, sell participations~~ Assignee or the Assignor to the Administrative Agent of a ~~Permitted Transferee~~ registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a ~~“Participant”) in all~~ Lender or ~~a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion~~ is an Affiliate of the ~~Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible~~ assigning Lender or of another Lender or an Affiliated Fund of the assigning Lender or of another Lender or with respect to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers initial syndication of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cCommitments), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Revolving Credit 1 Note, Revolving Credit 2 Note, Term B-1 Note, Term B-2 Note and/or New Term Note, as if the case may be, of the assigning Lender) a new Revolving Credit 1 Note, Revolving Credit 2 Note, Term B-1 Note, Term B-2 Note and/or New Term Note, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit 1 Commitment, Revolving Credit 2 Commitment, Term B-1 Loans, Term B-2 Loans and/or New Term Loan or New Term Loan Commitment, as the case may be, assumed or acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit 1 Commitment, a Revolving Credit 2 Commitment, Term B-1 Loans, Term B-2 Loans and/or New Term Loans or a New Term Loan Commitment, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, a new Revolving Credit 1 Note, Revolving Credit 2 Note, Term B-1 Note, Term B-2 Note and/or New Term Note, as the case may be, to the ~~terms of this Section 8.6(c)~~Assignor or its registered assigns in an amount equal to the Revolving Credit 1 Commitment, ~~each Participant also~~ Revolving Credit 2 Commitment, Term B-1 Loans, Term B-1 Loans, and/or New Term Loans or New Term Loan Commitment, as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ in the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNotes replaced thereby. (df) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more~~ the Borrower shall be permitted to acquire Loans (other than ~~one Noteholder~~ Swing Line Loans) pursuant to ~~Section 8.6(b)~~a Permitted Loan Repurchase so long as any Loans so acquired are cancelled and retired immediately upon the closing of such Permitted Loan Repurchase. For all purposes under this Agreement, upon the closing of a Permitted Loan Repurchase, any Loans acquired by the Borrower pursuant to such Permitted Loan Repurchase (i) ~~waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter~~ shall be deemed not to be ~~taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i)~~ outstanding and to have no principal amount and (ii) shall ~~require~~ be deemed to be automatically cancelled and retired without any further action by the ~~consent or approval of~~ Borrower, the ~~majority of Noteholders (by Outstanding Principal as of~~ Administrative Agent, the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement Lenders or any other ~~Secured Note Document~~ Person; provided, however, that is the Borrower shall take such actions and execute such documents and agreements as may be reasonably requested by the Administrative Agent to further evidence such cancellation and retirement. Immediately upon the cancellation and retirement of any Revolving Credit 1 Loans or Revolving Credit 2 Loans acquired by the Borrower from a ~~UST Non-Binding Amendment.~~ Revolving Credit Lender pursuant to a Permitted Loan Repurchase, the Revolving Credit 1 Commitment or Revolving Credit 2 Commitment of such Lender (has applicable) ~~The Issuer~~ shall be ~~deemed~~ reduced by an amount equal to ~~have satisfied its obligation~~ (i) such Revolving Credit Lender’s Revolving Credit 1 Commitment or Revolving Credit 2 Commitment (as applicable), multiplied by (ii) the quotient obtained by dividing (A) the principal amount of the Revolving Credit 1 Loans or Revolving Credit 2 Loans so acquired by (B) the aggregate amount of all Revolving 1 Extensions of Credit or Revolving 2 Extensions of Credit (as applicable) of such Lender immediately prior to ~~provide~~ such Permitted Loan Repurchase. For purposes of clarification, Permitted Loan Repurchases shall not constitute payments (or prepayments) of Loans for any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerpurpose hereunder.

Appears in 2 contracts

Samples: Credit Agreement (Wynn Las Vegas LLC), Credit Agreement (Wynn Resorts LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, the Issuing Lenders, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower or the Administrative Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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. 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 Borrower, the Administrative Agent and the Issuing Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.15(d) (it being understood that the documentation required under Section 2.15(d) shall be delivered to the participating Lender)) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the 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, with the consent of the Borrower, the Administrative Agent and each Issuing Lender; provided, however, that no consent of any Issuing Lender shall be required for an assignment of all or any portion of a Term Loan, New Term Loan or New Term III Loan (which, in each case, shall not be unreasonably withheld, delayed or conditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a Lender should notify the Borrower as promptly as possible of any request for assignment and the Borrower, in turn, should promptly consider such request for assignment; and (ii) the Borrower's consent shall not be considered to be unreasonably withheld, delayed or conditioned if the Borrower withholds, delays or conditions its consent because, among other factors, it is concerned about a potential Assignee's capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and,~~ recording in ~~each case, in accordance with any applicable securities laws of any state of~~ the ~~United States~~Register; provided that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in ~~no event may any transfer~~ an aggregate principal amount of less than $10,000,000, in each case except in the case of an assignment of all of a ~~Note~~ Lender’s interests under this Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be ~~made~~ aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such ~~transfer~~execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 9.6, the consent of the Borrower shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or ~~such transfer together with~~ the Administrative Agent any ~~prior transfers~~or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c). (d) The Administrative Agent shall, ~~would trigger registration requirements under~~ on behalf of the ~~Exchange Act. The Issuer or~~ Borrower, maintain at its ~~agent will maintain~~ address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount ~~of the Notes~~ (and stated ~~interest thereon~~interest) ~~held by~~ of the Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, the Administrative Agent, the Issuing Lenders and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a promissory note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of ~~any Note in violation~~ all or part of a Loan evidenced by a promissory note shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~promissory note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new promissory notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without~~ an Assignee and any other Person whose consent is required by Section 9.6(c), together with payment to the ~~consent~~ Administrative Agent of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is a Lender Affiliate of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(crelevant Assignor), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 9.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to ~~any~~ secure obligations to a Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act~~ applicable law; provided that no such pledge or assignment shall release a Lender from any of ~~1933,~~ its obligations hereunder or substitute any such pledgee or assignee for such Lender as ~~amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilityparty hereto. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue a promissory note to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring such a note to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Each of the ~~Initial Noteholder) with any report~~Borrower, ~~notice, financial statement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; provided, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access a proceeding against such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~Conduit Lender.

Appears in 2 contracts

Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc), Competitive Advance and Revolving Credit Agreement (Tegna Inc)

Appears in 2 contracts

Samples: Credit Agreement (Tenneco Inc), Credit Agreement (Tenneco Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, ~~all future Noteholders~~ the Lenders, the Agents and their respective successors and ~~assigns permitted hereby~~assigns, except as otherwise provided in Section 8.4, that ~~the Issuer~~ no Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (and any ~~attempted~~ purported such assignment or transfer by ~~the Issuer~~ such Borrower without such consent of each Lender shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, in accordance with applicable Law, at any time sell to one or more banks, financial institutions or other entities (individually, a “Participant” and, collectively, the “Participants”) participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents (a “Participation”). 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, Reimbursement Obligation or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the 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, except with respect to Sections 4.10 and 4.11, under which the Participant has certain rights with respect thereto. In no event shall any Participant under any such Participation have any right to approve any amendment to or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or the stated rate of interest on, the Loans, Reimbursement Obligation or any fees payable hereunder, or postpone the date of the final maturity of the Loans or Reimbursement Obligations, in each case to the extent subject to such Participation (and, for the avoidance of doubt, the Borrowers may exercise any rights granted to it in Section 4.17 with respect to the Lender that sold a Participation to such Participant to the extent that the direction by such Participant to such Lender to not consent to any such amendment would cause the applicable Lender to be subject to the provisions of Section 4.17). The Borrowers agree that if amounts outstanding under this Agreement are due or unpaid during an Event of Default, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable Law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.8(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of, and bound by the obligations imposed on the Lenders in, Sections 4.10, 4.11 and 4.14 with respect to its Participation in the Commitments and the Loans and other extensions of credit hereunder outstanding from time to time as if it were a Lender. (c) Any Lender may, in accordance with applicable Law, at any time and from time to time assign to any Lender or any Subsidiary, Affiliate or Approved Fund thereof, or, with the consent of the Collateral Agent, and, in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (which consent shall not be unreasonably withheld or delayed), to any other Person (the “Assignee”), all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or any Subsidiary, Affiliate or Approved Fund thereof, by the Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing and the Borrowers’ Agent is not deemed to consent to such assignment, the Borrowers’ Agent) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) each such assignment to an Assignee (other than any Lender) shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (other than in the case of (A) an assignment of all of a Lender’s interests under this Agreement or (B) an assignment to another Lender, a Subsidiary, an Affiliate or an Approved Fund of such assigning Lender), unless otherwise agreed by the Collateral Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such amount to be aggregated in respect of assignments by to any Lender and the affiliates or Approved Funds thereof), (ii) in the case of an assignment by a Lender to a Bank CLO managed by such Lender or an affiliate of such Lender, unless such assignment to such Bank CLO has been consented to by the Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such consent not to be unreasonably withheld or delayed), the assigning Lender shall retain the sole right to approve any amendment, waiver or other modification of this Agreement or any other Loan Document; provided that the Assignment and Acceptance between such Lender and such Bank CLO may provide that such Lender will not, without the consent of such Bank CLO, agree to any amendment, modification or waiver that requires the ~~Issuer~~consent of each Lender directly affected thereby pursuant to Section 11.2, ~~assign~~ and (iii) each Assignee shall comply with the provisions of Section 4.11(e) and (iv) 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 Loans or ~~transfer to one or more assignees that is a Permitted Transferee (each~~the Commitments assigned, ~~an “Assignee”)~~ and each Lender assigning all or a portion of its rights and obligations ~~under this Agreement (including all or~~ must do so on a ~~portion of~~ pro rata basis among the ~~Notes at~~ two separate Facilities. Upon such execution, delivery, acceptance and recording, from and after the ~~time owing to it)~~ effective date determined pursuant to an such Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, (x) the ~~assignee~~ Assignee thereunder to shall be ~~bound by the terms and provisions of the Intercreditor Agreement~~a party hereto and, ~~executed by such Assignee and such Noteholder and delivered~~ to the ~~Issuer for its records~~extent provided in such Assignment and Acceptance, ~~together with any related~~ have the rights and obligations ~~thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer~~ of a ~~Note be made if such transfer, or such transfer together~~ Lender hereunder with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions Commitments as set forth ~~in Section 8.6(e~~therein, and (y) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignmentsassigning Lender thereunder shall, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the ~~Issuer of maintaining the Notes. If there is more than one Noteholder~~extent provided in such Assignment and Acceptance, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and be released from its obligations under this Agreement (~~including~~ and, in the case of an Assignment and Acceptance covering all or a the remaining portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholderassigning Lender’s rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this Section 11.7, (x) the consent of the Borrowers’ Agent shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers’ Agent, for any assignment which occurs at any time when any of the events described in Section 9.1(f) shall have occurred and be continuing and (y) the Borrowers’ Agent shall be deemed to have consented to any assignment that requires such consent pursuant to the terms thereof unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.7 shall be treated for purposes of this Agreement as a sale by such Lender of a Participation in such rights and obligations in accordance with Section 11.7(b). (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrowers, shall maintain at the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register ~~on which it enters~~ (the ~~name~~“Register”) for the recordation of the names and addresses of the Lenders (including all Assignees and successors) and the Commitments of, ~~address~~ and ~~interest~~ principal amounts of the Loans and other Obligations owing to, each Lender from time to time. The entries made in the Register shall, to the extent permitted by applicable Law, be prima facie evidence of the existence and amounts of the obligations of the Borrowers therein recorded (absent manifest error), and the Borrowers, the Administrative Agent and the Lenders 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 owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary; provided, however, that the failure of ~~all Participants~~the Administrative Agent to maintain the Register, or any error therein, shall not in any manner affect the obligation of the Borrowers to repay (with applicable interest) the Loans and other extensions of credit hereunder made to the Borrowers by such Lender in accordance with the terms of this Agreement. ~~Each Noteholder shall refuse to register any transfer~~ Any assignment of any ~~participation in violation of the foregoing restrictions~~Loan or other Obligation hereunder, ~~the restrictions set forth in Section 8.6(e)~~ whether or ~~the restrictions set forth~~ not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Note~~Register. If The Register shall be available for inspection by the Borrowers’ Agent or any ~~such participation is~~ Lender at any reasonable time and from time to time upon reasonable prior notice. The parties intend for the Loans or other Obligations to be in ~~certificated form, it~~ registered form for tax purposes and this provision shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERbe construed in accordance with that intent. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender (or any Subsidiary, Affiliate or Approved Fund thereof), by the Administrative Agent, and in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Swing Line Lender and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent), together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $3,500 (other than in the case of an assignment to a Lender or an Affiliate of a Lender or any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the applicable Register and give notice of such acceptance and recordation to the Lenders and the Borrowers’ Agent. (f) The Borrowers authorize each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee in each case, any and all financial information in such Lender’s possession concerning the Borrowers, the other Loan Parties and their Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the Borrowers or the other Loan Parties pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrowers or other Loan Parties in connection with such Lender’s credit evaluation of the Borrowers, the other the Loan Parties and their Subsidiaries or Affiliates prior to becoming a party to this Agreement; provided that such Transferee or prospective Transferee shall have agreed to be bound by the provisions of Section 11.16 hereof. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 11.7 concerning assignments of Loans and other extensions of credit hereunder and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, (i) any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act applicable Law and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any ~~advice, consent, vote, action, direction~~ pledge or ~~other matter~~ assignment by a Lender which is a fund to ~~be taken, not taken or determined under this Agreement or any other Secured Note Document by~~ its trustee for the ~~Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date~~ benefit of such ~~determination)~~trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that ~~the unanimous consent~~ no such pledge or assignment of ~~all Noteholders~~ a security interest shall ~~be required with respect to~~ release a Lender from any of its obligations hereunder or substitute any such ~~waiver, amendment, modification, supplement, restatement~~ pledgee or ~~other revision to this Agreement or any other Secured Note Document that is~~ assignee for such Lender as a ~~UST Non-Binding Amendment~~party hereto. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 2 contracts

Samples: Credit Agreement (Cypress Environmental Partners, L.P.), Credit Agreement (Cypress Energy Partners, L.P.)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Parent, the Borrowers, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Notes and their respective successors and ~~assigns permitted hereby~~assigns, except that neither the ~~Issuer~~ Parent nor the Borrowers may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrowers, ~~assign or transfer~~ in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or funds that ~~is a Permitted Transferee~~ regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, ~~an “Assignee”~~a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the 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 ~~a portion~~ 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 reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement ~~(including~~ and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, 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 or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 90 84 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the ~~time owing~~ consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehmxx Xxxmercial Paper Inc. for a period of 120 days following the Closing Date), to itan additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and ~~such Noteholder~~ the Administrative Agent) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, ~~together with any related~~ Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in ~~accordance with any applicable securities laws~~ Section 8(f) shall have occurred and be continuing. (d) Any Non-U.S. Lender that could become completely exempt from withholding of any ~~state~~ tax, assessment or other charge or levy imposed by or on behalf of the United ~~States;~~ States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory 91 85 note(s) evidencing such Obligations for promissory note(s) registered as provided ~~that~~in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in ~~no event~~ the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may ~~any~~ not be exchanged for promissory notes that are not Alternative Notes. (e) 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 2.21(b). (f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be ~~made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under~~ effective unless it has been recorded in the ~~Exchange Act.~~ Register as provided in this Section 11.6(f). (g) The ~~Issuer or~~ Administrative Agent shall maintain at its ~~agent will maintain~~ address referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders (including Alternative Noteholders) and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrowers or any Lender at any reasonable time and from time to ~~register any transfer~~ time upon reasonable prior notice. (h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable (y) by Lehmxx Xxxmercial Paper Inc. for a period of 120 days following the Closing Date or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and 92 86 give notice of such acceptance and recordation to the Lenders and the Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note ~~in violation~~ and/or Tranche B Term Note, as the case may be, to the order of the ~~foregoing restrictions~~assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the ~~restrictions set forth in Section 8.6(e)~~ Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the ~~restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications~~ Borrowers pursuant to this Agreement ~~and the other Secured Note Documents as are reasonably required~~ or which has been delivered to ~~accommodate any~~ such ~~assignments, including, without limitation, amendments~~ Lender by or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent on behalf of the ~~Issuer, sell participations to a Permitted Transferee (a “Participant”) in all~~ Parent or ~~a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of~~ the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrowers in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note~~Parent, ~~would trigger registration requirements under~~ the ~~Exchange Act. Any agreement pursuant~~ Borrowers and their respective Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dj) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not Nothing herein shall prohibit ~~assignments creating security interests in Notes, including, without limitation,~~ or restrict any ~~pledge~~ Lender from (i) pledging or ~~assignment by a Noteholder of~~ assigning any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any ~~advice, consent, vote, action, direction~~ Loan or ~~other matter~~ Note to ~~be taken, not taken or determined under this Agreement or~~ any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding AmendmentPerson. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 2 contracts

Samples: Credit Agreement (Kirklands Inc), Credit Agreement (Kirklands Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and any Notes hereunder and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrowers may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ~~consent~~ ordinary course of its commercial banking or lending business and in accordance with applicable law and at no cost or expense to the ~~Issuer~~Borrowers, ~~assign or transfer~~ at any time sell to one or more ~~assignees that is~~ banks or other entities (other than a ~~Permitted Transferee~~ Defaulting Lender or a subsidiary thereof) (~~each, an~~ “~~Assignee~~Participants”) ~~all~~ 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 ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, (i) such Lender’s obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (Bii) such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance ~~of such obligations~~thereof, (Ciii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) the ~~Issuer~~ Borrowers and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided~~the other Loan Documents, ~~further, that~~ and (v) in ~~no event may~~ any ~~participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements~~ proceeding under the ~~Exchange Act~~Bankruptcy Code the Lender shall be, to the extent permitted by law, the sole representative with respect to the obligations held in the name of such Lender, whether for its own account or for the account of any Participant. ~~Any~~ No Lender shall be entitled to create in favor of any Participant, in the participation agreement pursuant to which ~~a Noteholder sells~~ such ~~a participation~~ Participant’s participating interest shall ~~provide that such Noteholder shall retain the sole~~ be created or otherwise, any right to ~~enforce this Agreement and~~ vote on, consent to or approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision matter relating to this Agreement or any other ~~Secured Note~~ Loan Document ~~that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c~~except for those specified in clauses (i), (ii) and (v) of the ~~Issuer agrees~~ proviso to Section 11. 1. The Borrowers agree that each Participant shall be entitled to the benefits of ~~Section 2.12,~~ Sections 4.13 and ~~2.13~~ 4.14 with respect to its participation in the ~~same extent~~ Commitments and the Loans and Letters of Credit outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 4.13, such Participant shall have complied with the requirements of said Section and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred. (c) Any Lender may, in the ordinary course of its commercial banking or lending business and in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate thereof or, with the prior written consent of the Administrative Agent, each Issuing Lender and the Borrowers (which in each case shall not be unreasonably withheld), to an additional bank or financial institution or other entity (other than a Defaulting Lender or any of its subsidiaries or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents including, without limitation, its Commitments, L/C Commitments, Loans and L/C Participating Interests, pursuant to an Assignment and Acceptance, substantially in the form of Exhibit C, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender, by the Borrowers, the Administrative Agent and each Issuing Lender) and delivered to the Administrative Agent for its acceptance and recording in the Register, provided that (i) (unless EPEP and the Administrative Agent otherwise consent in writing) no such transfer ~~occurs while~~ to an ~~Event~~ Assignee (other, than a Lender or any Affiliate thereof) shall be in an aggregate principal amount less than $1,000,000 in the aggregate (or, if less, the full amount of ~~Default~~ such assigning Lender’s Loans, L/C Participating Interests and Commitments), and (ii) if any Lender assigns all or any part of its rights and obligations under this Agreement to one of its Affiliates in connection with or in contemplation of the sale or other disposition of its interest in such Affiliate, the Borrowers’ prior written consent shall ~~have occurred~~ be required for such assignment (which shall not be unreasonably withheld). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be ~~continuing. To~~ a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and L/C Commitment as set forth therein, and ~~subject~~ (y) the assigning Lender thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this Section 11.6, the consent of the Borrowers shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 9.1 shall have occurred and be continuing. (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrowers, shall maintain at the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amounts of the Loans owing to, each Lender from time to time. In addition, the Administrative Agent shall maintain on ~~which it enters~~ the ~~name~~Register information regarding the designation, ~~address~~ and ~~interest~~ revocation of designation, of any Lender as a Defaulting Lender. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders 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 owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything in this Agreement ~~of all Participants. Each Noteholder shall refuse~~ to ~~register any transfer~~ the contrary, no assignment under Section 11.6(c) of any ~~participation~~ rights or obligations under or in ~~violation~~ respect of the ~~foregoing restrictions~~Loans, the ~~restrictions set forth in Section 8.6(e)~~ Notes or the ~~restrictions set forth~~ Letters of Credit shall be effective unless and until the Administrative Agent shall have recorded the assignment pursuant to Section 11.6(d). Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the ~~Note. If any~~ case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrowers and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (other than in the case of an assignment by a Lender to an affiliate of such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”Lender), ~~OR ANY STATE SECURITIES LAWS~~the Administrative Agent shall (i) promptly accept such Assignment and 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 Borrowers. On or prior to such effective date, ~~AND~~the assigning Lender shall surrender any outstanding Notes held by it all or a portion of which are being assigned, ~~ACCORDINGLY~~and the Borrowers, ~~MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION~~ at their own expense, shall, upon the request to the Administrative Agent by the assigning Lender or the Assignee, as applicable, execute and deliver to the Administrative Agent (~~OR ITS PREDECESSOR~~in exchange for the outstanding Notes of the assigning Lender) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY a new Note to the order of such Assignee in an amount equal to the lesser of (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR the amount of such Assignee’s Commitment and (B) ~~TO THE ISSUER OR ITS SUBSIDIARIES AND~~the aggregate principal amount of all Loans made by such Assignee, ~~IN EACH CASE~~after giving effect to such Assignment and Acceptance and, ~~IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER~~if the assigning Lender has retained a Commitment hereunder, ~~OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS~~a new Note to the order of the assigning Lender in an amount equal to the lesser of (A) the amount of such Lender’s Commitment and (B) the aggregate principal amount of all Loans made by such Lender, ~~WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934~~after giving effect to such Assignment and Acceptance. Any such new Notes shall be dated the Effective Date and shall otherwise be in the form of the Note replaced thereby. Any Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Borrowers marked “canceled.” (f) The Borrowers authorize each Lender to disclose to any Participant or Assignee (each, ~~AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER~~a “Transferee”) and any prospective Transferee, any and all financial information in such Lender’s possession concerning the Borrowers and their Affiliates which has been delivered to such Lender by or on behalf of the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrowers in connection with such Lender’s credit evaluation of the Borrowers and their Affiliates prior to becoming a party to this Agreement. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank or central bank with jurisdiction over such Lender in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentlaw. (h) ~~The Issuer~~ Notwithstanding any provision of this Section, a Lender may not (i) assign an interest in the Loans or its Note to (x) any Defaulting Lender or any of its subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons or (y) a Borrower or an Affiliate of a Borrower or (ii) grant a participation in the Loans or its Note to a Defaulting Lender, a subsidiary thereof, a Borrower or an Affiliate of a Borrower. (i) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Lender and each 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 in accordance with its Commitment 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 ~~have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to~~ be ~~provided under~~ a Defaulting Lender for all purposes of this Agreement ~~or any other Secured Note Document, by making~~ until such ~~report, notice, financial statement or other information available by electronic media, bulletin board service or internet website~~ compliance occurs. (j) Except to the extent ~~such action does not conflict with~~ otherwise expressly agreed by the ~~terms~~ affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of ~~this Agreement or Applicable Law. In connection with providing access to the Issuer~~any claim of any party hereunder arising from that Lender’s ~~internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration,~~ having been a ~~confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~Defaulting Lender.

Appears in 2 contracts

Samples: Credit Agreement (EP Energy Corp), Credit Agreement (El Paso Corp/De)

Appears in 2 contracts

Samples: Credit Agreement (Neogen Corp), Credit Agreement (Garden SpinCo Corp)

Appears in 2 contracts

Samples: Revolving Credit Agreement (Case Corp), Revolving Credit Agreement (Case Credit Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower and with notice to the Syndication Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~a "Participant") ~~all~~ 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 ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Agents shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 10.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.17, 2.18 and ~~2.13~~ 2.19 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred. (c) Any Lender (an "Assignor") may, in accordance with applicable law and with written notice to the Syndication Agent, at any time and from time to time assign to any Lender or any affiliate thereof or a Person under common management with a Lender or, with the consent of the Borrower and the Syndicate Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Acceptance (an "Assignment and Acceptance") substantially in the form of Exhibit D, executed by such Assignee, such Assignor, the Syndication Agent and the Administrative Agent (and, where the consent of the Borrower is required pursuant to the foregoing provisions, by the 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 thereof) shall be in an aggregate principal amount of less than $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, the Syndication Agent and the Administrative Agent. Any such ~~transfer~~ 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 11.6, the consent of the Borrower shall not be required for any assignment which occurs ~~while an~~ at any time when any Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) The Administrative Agent (acting for this purpose as agent of the Borrower) shall maintain at its address referred to in Section 10.2 a copy of each Assignment and 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 and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register (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 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 "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person under common management with such Lender, by the Borrower, the Administrative Agent, the Syndication Agent and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (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 (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), the Administrative Agent shall (i) promptly accept such Assignment and 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 Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term 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 Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment and/or Tranche B Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the assigning Lender 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 Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 2 contracts

Samples: Credit Agreement (Nationwide Credit Inc), Credit Agreement (Nationwide Credit Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, a "PARTICIPANT") participating interests in any Loan owing to such Lender, the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an ~~“Assignee”~~Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 8.7 as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; PROVIDED that, in the case of Section 2.13, 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. (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 Person (an "ASSIGNEE") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and~~recording in the Register; PROVIDED that (i) the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) shall be required in ~~accordance with~~ the case of (x) any ~~applicable securities laws~~ assignment to a Person that is not a Lender or a Lender Affiliate or (y) any assignment of ~~any state~~ a Commitment to a Person that does not have a Commitment (except that the consent of the ~~United States; provided that~~Borrower shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~no event may any transfer~~ each case except in the case of an assignment of all of a ~~Note~~ Lender's interests under this Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be ~~made~~ aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such ~~transfer~~execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or ~~such transfer together with~~ the Administrative Agent any ~~prior transfers~~or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 8.6(c). (d) The Administrative Agent shall, ~~would trigger registration requirements under~~ on behalf of the ~~Exchange Act. The Issuer or~~ Borrower, maintain at its ~~agent will maintain~~ address referred to in Section 8.2 a copy of each Assignment and Acceptance delivered to it and a register (~~“Register”~~the "REGISTER") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights~~ an Assignee and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other ~~Secured Note Document that~~ Person whose consent is ~~a UST Non-Binding Amendment. Subject to the terms of this~~ required by Section 8.6(c), ~~the Issuer agrees that each Participant shall be entitled~~ together with payment to the ~~benefits~~ Administrative Agent of ~~Section 2.12~~a registration and processing fee of $4,000 (such fee not to be payable by the Borrower), the Administrative Agent shall (i) promptly accept such Assignment and ~~2.13 to~~ Acceptance and (ii) record the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Each of the ~~Initial Noteholder) with any report~~Borrower, ~~notice, financial statement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; PROVIDED, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 2 contracts

Samples: Revolving Credit Agreement (Bunge LTD), Revolving Credit Agreement (Bunge LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an ~~“Assignee”~~Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.07(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender; PROVIDED that, in the case of Section 2.13, 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. (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, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "ASSIGNEE") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register (as defined below); PROVIDED that, ~~together with~~ unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any ~~related~~ Lender or any 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 an aggregate amount of at least $5,000,000 in each case described in 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, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. The Assignee shall purchase, at par, all Loans and pay all accrued interest and other amounts owing to such Assignor under this Agreement on or prior to the date of assignment for any assignment pursuant to Section 2.16. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section 9.06, the consent of the ~~United States; provided that~~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 to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in ~~no event may any transfer~~ the first sentence of this Section 9.06(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.02 a ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (~~“Register”~~the "REGISTER") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 9.06(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$4,000, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 9.06 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) The ~~Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Borrower, each Lender and the ~~Initial Noteholder) with any report, notice, financial statement~~ Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; PROVIDED, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 2 contracts

Samples: 364 Day Credit Agreement (Fedex Corp), Credit Agreement (Fedex Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ no Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Issuer~~its commercial banking business and in accordance with applicable law, ~~assign or transfer~~ at any time sell to one or more ~~assignees that is~~ banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a ~~Permitted Transferee (each~~Lender of a participating interest to a Participant, ~~an “Assignee”) all or a portion of its rights and~~ such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrowers and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of~~ the ~~Note, would trigger registration requirements under the Exchange Act~~other Loan Documents. Any agreement pursuant to which ~~a Noteholder sells~~ any Lender shall sell any such ~~a participation~~ participating interest shall provide that such ~~Noteholder~~ Lender shall retain the sole right and responsibility to exercise such Lender's rights and enforce ~~this Agreement and~~ the Borrowers' obligations hereunder, including the right to ~~approve~~ consent to any amendment, supplement, modification or waiver of any provision of this ~~Agreement;~~ Agreement or any of the other Loan Documents, provided that such participation agreement may provide that such ~~Noteholder~~ Lender will ~~not~~not agree to any amendment, supplement, modification or waiver described in clause (A) or (B) of the proviso to the second sentence of subsection 15.1 without the consent of the Participant~~, agree to any waiver, amendment, modification, supplement, restatement or other revision to~~ . Each Borrower agrees that if amounts outstanding under this Agreement are due or ~~any other Secured Note Document that is a UST Non-Binding Amendment. Subject~~ unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the ~~terms~~ same extent as if the amount of its participating interest were owing directly to it as a Lender under this ~~Section 8.6(c)~~Agreement; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the ~~Issuer~~ Lenders the proceeds thereof as provided in subsection 15.7(a) as fully as if it were a Lender hereunder. Each Borrower agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~subsections 7.10, 7.11, 7.12, 7.13 and ~~2.13~~ 15.6 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time hereunder as if it ~~were~~ was a ~~Noteholder~~ Lender. (c) Any Lender may, in the ordinary course of its commercial banking business and ~~had acquired~~ in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate thereof or, with the prior written consent of the U.S. Borrower (such consent not to be unreasonably withheld) and the Administrative Agent (such consent not to be unreasonably withheld), to an additional bank or financial institution (an "Assignee") all or any part of its ~~interest by assignment~~ rights and obligations under this Agreement and the other Loan Documents including, without limitation, its Commitments and Loans, pursuant to ~~paragraph (b) of this Section 8.6; provided~~an Assignment and Acceptance, ~~that the Noteholders and all Participants shall be entitled to receive no greater amount~~ substantially in the form of Exhibit G, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof, by the U.S. Borrower and the Administrative Agent) and delivered to the Administrative Agent for their acceptance and recording in the Register; provided that (i) if any Lender assigns a part of its rights and obligations in respect of Revolving Credit Loans and/or Revolving Credit Commitment under this Agreement to an Assignee, such Lender shall assign proportionate interests in their respective Revolving Credit Loans and Revolving Credit Commitment and other related rights and obligations hereunder to such Assignee, (ii) if any Lender assigns a part of its rights and obligations under this Agreement in respect of its Revolving Credit Loans and/or Revolving Credit Commitments to an Assignee, such Lender shall assign proportionate interests in (A) its participations in the Swing Line Loans and other rights and obligations hereunder in respect of the Swing Line Loans to such Assignee and (B) Multicurrency Loans and Multicurrency Commitments, (iii) in the case of any such assignment to an additional bank or financial institution, the aggregate amount of any Revolving Credit Commitment (or, if the Revolving Credit Commitments have terminated or expired, the aggregate principal amount of any Revolving Credit Loans) being assigned shall not be less than $10,000,000 (or (x) if less, the then outstanding amount of such Commitments and/or Loans or (y) such lesser amount as may be agreed by the Borrowers and the Administrative Agent). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such ~~Sections than~~ Assignment and Acceptance, (I) the ~~Noteholder would~~ Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments, rights in respect of Loans as set forth therein, and (II) the assigning Lender thereunder shall be released from its obligations under this Agreement to the extent that such obligations shall have been ~~entitled~~ expressly assumed by the Assignee pursuant to ~~receive had no~~ such ~~transfer occurred unless such transfer occurs while~~ Assignment and Acceptance (and, in the case of an ~~Event~~ Assignment and Acceptance covering all or the remaining portion of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s an assigning Lender's rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto). (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrowers, shall maintain at their respective addresses referred to in subsection 15.2 a copy of each Assignment and Acceptance delivered to it and a register ~~on which it enters~~ (the ~~name~~"Register") for the recordation of (i) the names and addresses of the Lenders and the Commitments of, ~~address~~ and ~~interest~~ principal amounts of the Loans owing to, each Lender from time to time and (ii) the other information required from time to time pursuant to subsection 3.1 in respect of Swing Line Loans. The entries in the Register shall constitute prima facie evidence of the information recorded therein, and the Borrowers, the Administrative Agent and the Lenders may (and, in the case of any Loan or other obligation hereunder not evidenced by a Revolving Credit Note, shall) treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement ~~of all Participants~~and the other Loan Documents, notwithstanding any notice to the contrary. ~~Each Noteholder shall refuse to register any transfer~~ Any assignment of any ~~participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Loan or ~~the restrictions set forth~~ other obligation hereunder not evidenced by a Revolving Credit Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Note~~Register. If The Register shall be available for inspection by the Borrowers or any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERLender at any reasonable time and from time to time upon reasonable prior notice. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof, executed by the Borrowers and the Administrative Agent), together with payment to the Administrative Agent of a registration and processing fee of $2,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the Lenders and the Borrowers. (f) Each Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Borrower and its Affiliates which has been delivered to such Lender by or on behalf of such Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Borrower in connection with such Lender's credit evaluation of such 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 8.6~~ subsection 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 Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Revolving Credit Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (eh) ~~The Notes have not been registered under the United States Securities Act of 1933~~If, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to ~~Section 8.6(b)~~this subsection, any ~~(i) waiver, amendment, modification, supplement, restatement or other revision to~~ interest in this Agreement or any Loan is transferred to any Transferee (which is a Lender) which is organized under the laws of any jurisdiction other ~~Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement~~ than the United States or any ~~other Secured Note Document by~~ state thereof, the ~~Noteholders~~transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to agree (for the benefit of the transferor Lender, the Administrative Agent and the U.S. Borrower) to provide the transferor Lender (and, in the case of ~~each of clauses~~ any Transferee registered in the Register, the Administrative Agent and the U.S. Borrower) the tax forms and other documents required to be delivered pursuant to subsection 7.11(b) and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption. (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect If, pursuant to this subsection, any ~~such waiver, amendment, modification, supplement, restatement or other revision to~~ interest in this Agreement or any ~~other Secured Note Document that~~ Loan is ~~a UST Non-Binding Amendment.~~ transferred to any Transferee, the transferor Lender shall cause such Transferee, concurrently with the effectiveness of such transfer, to agree (hfor the benefit of the transferor Lender, the General Administrative Agent and the Foreign Subsidiary Borrowers) ~~The Issuer shall be deemed to have satisfied its obligation~~ to provide ~~any Noteholder (~~the transferor Lender, the General Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and other ~~than the Initial Noteholder) with any report, notice, financial statement or other information~~ documents required to be ~~provided under this Agreement or any other Secured Note Document, by making~~ delivered pursuant to subsection 9.11(c) and to comply from time to time with all applicable laws and regulations with regard to such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerwithholding tax exemption.

Appears in 2 contracts

Samples: Revolving Credit and Guarantee Agreement (Case Corp), Revolving Credit and Guarantee Agreement (Case Credit Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement or any other Loan Document without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender (and any attempted such assignment or transfer ~~by the Issuer~~ without such ~~consent~~ consents shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Revolving Credit Loan owing to such Lender, the Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Revolving Credit Loan or any Reimbursement Obligation for all purposes under this Agreement and the other Loan Documents, and the Borrower and the 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 and each Lender shall retain the sole right to enforce any Loan Document and approve any amendment, modification or waiver of any provision of the Loan Documents, except that a selling Lender may agree that, without the Participant’s consent, such selling Lender will not agree to any amendment, waiver or consent to any provisions of the Loan Documents to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or Reimbursement Obligations or any fees payable hereunder, release all or substantially all of the Collateral, release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 with respect to its participation in the Revolving Credit Commitments and the Loans and Reimbursement Obligations outstanding from time to time as if it were a Lender; provided that, in the case of Section 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. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Approved Fund or Control Investment Affiliate thereof or, with the consent of each Issuing Lender, the Swing Line Lender, the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower or any other Person is required pursuant to the foregoing provisions, by the Borrower and each such other Person) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $3,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~together with any related~~ unless (i) otherwise agreed by the Borrower and the Administrative Agent or (ii) such assignment is one of two or more assignments being made simultaneously to affiliated Assignees, the sum of the aggregate principal amounts of which is at least $3,000,000. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans and other interests as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 2.13, 2.14, 2.16 and 9.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective 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. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 9.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Revolving Credit Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Revolving Extensions of Credit owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Revolving Extensions of Credit and any Notes evidencing 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 (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 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 ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ entry relating to such Lender’s Revolving Extensions of Credit) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 9.6(c), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is more than one Noteholder, the Issuer~~ a registration and processing fee of $3,500 (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to Xxxxxx Commercial Paper Inc. or any Affiliate thereof or (z) in the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders, the Administrative Agent and the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Revolving Credit Commitment acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment, upon request, a new Note to the order of the Assignor in an amount equal to the Revolving Credit Commitment retained by it hereunder. Such new Note or Notes shall ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERClosing Date and shall otherwise be in the form of the Note replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Granting Lender’s and the Borrower’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, the Granting Lender shall remain solely responsible for the performance thereof, and the Borrower, the Lenders and the Agents shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under this Agreement and the other Loan Documents. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~8.6(b~~9.6(g), any SPC may (iA) ~~waiver~~with notice to, ~~amendment~~but without the prior written consent of, ~~modification~~the Borrower and the Administrative Agent and without paying any processing fee therefor, ~~supplement~~assign all or a portion of its interests in any Loans to the Granting Lender, ~~restatement~~ or ~~other revision~~ with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to ~~this Agreement~~ any financial institutions providing liquidity and/or credit support to or ~~any other Secured Note Document~~ for the account of such SPC to support the funding or ~~(ii) any advice~~maintenance of Loans, ~~consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i)~~ and (iiB) ~~shall require the consent~~ disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or ~~approval~~ provider of ~~the majority of Noteholders (by Outstanding Principal as of the date of~~ any surety, guarantee or credit or liquidity enhancement to such ~~determination)~~SPC; provided that non-public information with respect to the ~~unanimous~~ Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all ~~Noteholders~~ 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 ~~required~~ entitled to grant or withhold any consent applicable to such Loan, but such Granting Lender shall communicate with ~~respect~~ the Administrative Agent and the Borrower as to ~~any~~ the giving or withholding of such ~~waiver~~consent, ~~amendment, modification, supplement, restatement or other revision~~ and the parties to ~~this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer~~ the Loan Documents shall be ~~deemed~~ entitled to ~~have satisfied its obligation~~ rely conclusively on the advice by such Granting Lender as to ~~provide~~ whether such consent is being granted or withheld. This paragraph (g) may not be amended without the written consent of any ~~Noteholder (other than~~ SPC with Loans outstanding at the ~~Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making~~ time of such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerproposed amendment.

Appears in 2 contracts

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

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~a "Participant") participating interests in any Loan owing to such Lender, any Commitments of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; any Lender selling such a participating interest shall notify the Borrower of such sale promptly upon the completion thereof. 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 ~~or a portion of its~~ purposes under this Agreement and the other Loan Documents, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement ~~(including all~~ and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by the Borrower therefrom, provided, that any agreement or instrument pursuant to which a ~~portion~~ Lender sells such a participation to a Participant may provide that such Lender will not, without the consent of such Participant, agree to any amendment, waiver or consent which would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the ~~Notes~~ final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (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 Approved Fund or, with the ~~time owing~~ consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to itan additional bank, financial institution or other entity (an "Assignee") all or, except in the case of an outstanding Competitive Loan, any part of its rights or obligations under this Agreement pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, ~~together with~~ any affiliate of any Lender or any Approved Fund) shall be in an aggregate principal amount of less than $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. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section 9.6, the consent of the ~~United States; provided that, in no event may~~ Borrower shall not be required for any ~~transfer~~ assignment occurring after the occurrence and during the continuance of a ~~Note be made if such transfer~~Default or Event of Default. (d) The Administrative Agent shall, ~~or such transfer together with any prior transfers~~on behalf of the Borrower, ~~would trigger registration requirements under the Exchange Act. The Issuer or~~ maintain at its ~~agent will maintain~~ address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitments of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 9.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$3,500, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 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 Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 2 contracts

Samples: Credit Agreement (Keyspan Corp), Credit Agreement (Keyspan Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Parent, Holdings, Intermediate Holdings, the Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees~~ 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. (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 ~~Permitted Transferee~~ motion picture 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 (~~each~~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 ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit E, executed by such Assignee and such ~~Noteholder~~ 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 ~~Issuer~~ Administrative Agent for its ~~records~~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, ~~together with~~ in the case of any ~~related~~ 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~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 ~~no event may any transfer~~ this paragraph, multiple assignments to or by two 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 ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance; thereupon one or ~~the restrictions set forth~~ more new Notes in the ~~Note. The Issuer~~ same aggregate principal amount shall ~~enter into such amendments or other modifications~~ be issued to ~~this Agreement~~ the designated Assignee, and the ~~other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for~~ old Notes shall be returned by the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost Administrative Agent to the ~~Issuer~~ 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 ~~maintaining~~ an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the ~~Notes. If there~~ consent of any other Person is ~~more than one Noteholder~~required by Section 10.6(c), ~~the Issuer shall provide all information and documents delivered hereunder~~ by each such other Person) together with payment to the ~~Initial Noteholder~~ Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to ~~any other Noteholder upon~~ two or more Related Funds as a single assignment) (except that no such ~~Noteholder’s reasonable request. The Initial Note~~ registration and ~~each additional Note issued pursuant to Section 2.3(b)~~ processing fee shall be payable in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations by or to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cLxxxxx Entity), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as if 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 were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the ~~terms~~ order of ~~this Section 8.6(c)~~the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, ~~each Participant also~~ as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ dated the ~~benefits~~ Closing Date and shall otherwise be in the form of ~~Section 8.7 as though it were~~ the ~~Noteholder~~Note or Notes replaced thereby. In the event that the Administrative Agent has received a ~~Noteholder sells~~ Revolving Credit Note and/or a ~~participation in such Noteholder’s rights and obligations under this Agreement~~Term Note, ~~such Noteholder~~as the case may be, ~~on behalf of Issuer, shall maintain a register on which it enters~~ from the ~~name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions~~assigning Lender, the ~~restrictions set forth in Section 8.6(e) or~~ Administrative Agent shall promptly return to the ~~restrictions set forth in the Note. If any~~ Borrower such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNote and/or Notes for cancellation. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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 ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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 ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to ~~any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall~~ the Borrower may be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict disclosed only with the ~~terms~~ Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~this Agreement or Applicable Law. In connection with providing access to~~ the ~~Issuer’s internet website~~Required Lenders, the ~~Issuer may take reasonable measures to ensure that only then current Noteholders may access~~ Borrower and any SPC with Loans outstanding at the time of such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Cinemark Usa Inc /Tx)

Appears in 1 contract

Samples: Credit Agreement (Tenneco Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement except in a transaction permitted pursuant to Section 6.4(a)(i) without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) participating interests in ~~all or a portion~~ any Loan owing to such Lender, any Commitment of such ~~Noteholder~~Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided however, that no Lender shall be permitted to sell any such participating interest to (i) a Disqualified Institution, (ii) a Defaulting Lender, (iii) a Person that fails to represent to such Lender that it is a Qualified Person or (iv) a natural person. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s ~~rights and~~ obligations under this Agreement ~~(including all or a portion of~~ to the ~~Notes owing~~ other parties to ~~it); provided that (A) such Noteholder’s obligations under~~ this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Agents shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of ~~this Agreement; provided~~ any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such ~~agreement may provide~~ amendment, waiver or consent would require the consent of all Lenders pursuant to Section 9.1 with respect to any amendment, waiver or consent that would (a) increase in the amount or extend the expiration date of any Commitment of such ~~Noteholder will not~~Lender, ~~without~~ (b) forgive the principal amount or extend the final scheduled date of maturity of any Loan or Reimbursement Obligation, extend the scheduled date of any amortization payment in respect of any Term Loan, reduce the stated rate of any interest or fee payable under this Agreement (except (x) in connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the consent of the ~~Participant~~Required Facility Lenders of each adversely affected Facility), ~~agree to~~ and (y) that any ~~waiver, amendment, modification, supplement, restatement~~ amendment or ~~other revision to~~ modification of defined terms used in the financial covenant in this Agreement shall not constitute a reduction in the rate of interest or ~~any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms~~ fees for purposes of this ~~Section 8.6(c~~clause (b)) or extend the scheduled date of any payment thereof, or increase the ~~Issuer~~ amount or extend the expiration date of any Commitment of such Lender, (c) release all or substantially all of the Collateral (other than as expressly provided in the Loan Documents) or release all or substantially all of the Loan Parties from their guarantee obligations under the Guarantee Agreement (other than as expressly provided in the Loan Documents) and (d) change any voting thresholds. The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections 2.17, 2.18 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 ~~2.12~~2.18, such Participant shall have complied with the requirements of said Section, and ~~2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ occurred, except to the extent ~~permitted by law, and subject~~ such entitlement to receive a greater amount results from a Change In Law that occurs after the ~~terms of this Section 8.6(c), each~~ Participant ~~also shall be entitled to~~ acquired the ~~benefits of Section 8.7 as though it were the Noteholder~~applicable participation. ~~In the event~~ Each Lender that ~~a Noteholder~~ sells a participation ~~in such Noteholder’s rights and obligations under~~ shall, acting solely for this ~~Agreement~~purpose as a non-fiduciary agent of the Borrower, ~~such Noteholder, on behalf of Issuer, shall~~ maintain a register on which it enters the ~~name,~~ name and address of each Participant and the principal and interest amount of each Participant’s interest in the Loans 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 the participation in question for all purposes of this ~~Agreement~~ Agreement, notwithstanding notice to the contrary. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and with the written consent of ~~all Participants. Each Noteholder shall refuse~~ (i) the Borrower (so long as no Event of Default has occurred and is continuing), (ii) the Administrative Agent (other than to ~~register any transfer~~ a Lender or an Affiliate of a Lender with a commitment in respect of the applicable Facility) and (iii) in the case of any ~~participation in violation~~ assignment of Revolving Credit Commitments, the written consent of the ~~foregoing restrictions~~Issuing Bank and the Swing Line Lender which, in each case, shall not be unreasonably withheld or delayed, (provided the ~~restrictions set forth in Section 8.6(e) or~~ consent of the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) Borrower need not be obtained (1) ~~TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR~~ in respect of an assignment of all or a portion of the Term Loans, if such assignment is to a Term Loan Lender or an Affiliate of a Term Loan Lender, (2) ~~TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1)~~in respect of an assignment of all or a portion of the Revolving Credit Facility, ~~(2)~~if such assignment is to a Revolving Credit Lender or an Affiliate of a Revolving Credit Lender, (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any ~~such waiver~~assignment made to or, ~~amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document~~ in connection with the primary syndication of the Facilities during the period commencing on the Closing Date and ending on the date that is ~~a UST Non-Binding Amendment.~~ 45 days following the Closing Date and (h4) ~~The Issuer~~ with respect to any assignments pursuant to clauses (g) or (k) below; provided further that the Borrower shall be deemed to have ~~satisfied~~ consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof), at any time and from time to time assign to any Lender or any affiliate or Related Fund thereof, to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its ~~obligation~~ rights and obligations under this Agreement pursuant to ~~provide any Noteholder~~ an Assignment and Acceptance, substantially in the form of Exhibit H-1 (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Bank 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 of the Revolving Credit Facility or the Term Loan Facilities (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 with respect to the ~~Initial Noteholder)~~ Term Loan Facility and $5,000,000 with ~~any report, notice, financial statement or~~ respect to the Revolving Credit Facility (other ~~information required to be provided~~ than in the case of an assignment of all of a Lender’s interests under this ~~Agreement~~ 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 or $5,000,000, as applicable, in each case unless otherwise agreed by the Borrower and the Administrative Agent; provided, further that no assignment shall be made to (i) a natural person, (ii) any Disqualified Institution, (iii) any Person that fails to represent to such Lender that it is a Qualified Person, (iv) any Defaulting Lender or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.its Subsidiaries or

Appears in 1 contract

Samples: Credit Agreement (New Media Investment Group Inc.)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Issuing Bank, the Agent, all future ~~Noteholders~~ Lenders and their respective successors and ~~assigns~~ permitted ~~hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Issuing Bank and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants"), participating interests in the Loans owing to, and the LC Exposure of, such Lender, the Notes held by such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided that no such participating interests shall be in an aggregate principal amount of less than $5,000,000. 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 Loans made by it, any Notes issued to it, and any participations in Letters of Credit sold to it, hereunder for all purposes of this Agreement and the other Loan Documents, and the Borrower, the Issuing Bank, the other Lenders and the 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. Any agreement pursuant to which any Lender shall sell any such participating interest shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender's rights and enforce the Borrower's obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any other Loan Document, provided that such participation agreement may provide that without the consent of the ~~Issuer~~Participant such Lender will not agree to (i) the increase or extension of the term of such Lender's Commitment, (ii) the extension of any date fixed for the payment of principal of or interest on any of such Lender's Loans, (iii) the reduction of any payment of principal of any of such Lender's Loans or (iv) the reduction of the rate of interest on any of such Lender's Loans below the rate at which the Participant is entitled to receive interest in respect of its participation therein. The Borrower agrees that each Lender shall be entitled to the benefits of Sections 3.3, 3.4 and 3.5 without regard to whether it has granted any participating interests, and that all amounts payable to a Lender under Sections 3.3 and 3.4 shall be determined as if such Lender had not granted any such participating interests. The Borrower agrees that each Participant shall 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 or any Note, provided that such Participant shall only be entitled to such right of setoff if it shall have agreed in the agreement pursuant to which it shall have acquired its participating interest to share with the Lenders the proceeds thereof as provided in Section 9.7. (c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time, with the prior written consent of the Agent and the Issuing Bank (which consent shall not be unreasonably withheld or delayed) assign to any of its Affiliates or ~~transfer~~ to ~~one~~ any other Lender or ~~more assignees that is a Permitted Transferee~~ any Affiliate thereof, or, with the prior written consent of the Agent and the Issuing Bank and (so long as no Event of Default shall have occurred and be continuing) the Borrower (which consents shall not be unreasonably withheld or delayed), to any other bank or financial institution (each, an “"Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement (and the other Loan Documents, including ~~all or a portion of the Notes at the time owing to it)~~ its Loans, its LC Exposure and its Commitments pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit J, executed by such Assignee, such assigning Lender, the Agent and the Issuing Bank (and, in the case of an Assignee ~~and such Noteholder~~ that is not then a Lender or an Affiliate thereof, by the Borrower) and delivered to the ~~Issuer~~ Agent for its ~~records~~acceptance and recording in the Register; provided that each such transfer to an Assignee shall be in an aggregate principal amount of $5,000,000 or any larger amount that is a whole multiple of $1,000,000 (or, ~~together with any related~~ if less, the full amount of such assigning Lender's Loans). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Loans as set forth therein, and (y) the assigning Lender thereunder shall be released from its obligations under this Agreement to the extent that such obligations shall have been expressly assumed by the Assignee pursuant to such Assignment and Acceptance (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with~~ such assigning Lender shall cease to be a party hereto; provided, however, that, notwithstanding such assignment, the provisions of Sections 3.3, 3.4, 3.5 and 9.2 shall continue to inure to the benefit of such Lender as to any ~~applicable securities laws~~ payments made to, any costs or reductions affecting, and any actions taken or omitted to be taken by, such Lender prior to the effective date of such assignment). Notwithstanding the foregoing, no Assignee which as of the date of any ~~state~~ assignment to it pursuant to this Section 9.6(c) would be entitled to receive any greater payment under Section 3.3 or 3.4 than the assigning Lender would have been entitled to receive as of such date under such Sections with respect to the ~~United States; provided that~~rights assigned, shall be entitled to receive such greater payments unless the Borrower has consented in ~~no event may any transfer~~ writing to the assignment. (d) The Agent shall maintain at its address referred to on Schedule I a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitments of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer of any Note~~ , and the Borrower, the Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded in ~~violation~~ the Register as the owner of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide Loans recorded therein for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision purposes of this Agreement~~; provided that such agreement may provide that such Noteholder will not~~. The Register shall be available for inspection by the Borrower, ~~without~~ the ~~consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement~~ Issuing Bank or any ~~other Secured Note Document that is a UST Non-Binding Amendment. Subject~~ Lender at any reasonable time and from time to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Lawtime upon reasonable prior notice. (e) ~~The Notes have~~ Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, an Assignee, the Issuing Bank and the Agent (and, in the case of an Assignee that is not ~~been registered under~~ then a Lender or an Affiliate thereof, by the ~~United States Securities Act of 1933, as amended (the “Securities Act”~~Borrower), together with payment by the assigning Lender to the Agent of a registration and processing fee of $3,000, the Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto (which date shall be no earlier than 5 Business Days after the Agent's receipt of such Assignment and Acceptance) record the information contained therein in the Register and give prompt notice of such acceptance and recordation to the Lenders, the Issuing Bank and the Borrower. On or prior to such effective date, the assigning Lender shall surrender any ~~state securities laws~~outstanding Notes held by it, and the Borrower, at its own expense, shall execute and deliver to the Agent, if so requested by the Assignee, one or more new Notes, to the order of such Assignee in an aggregate amount equal to the portion of the assigning Lender's Loans that are being acquired by such Assignee and, ~~accordingly~~if the assigning Lender has retained a portion of its Loans hereunder and requests such Notes, ~~may not~~ one or more new Notes, to the order of the assigning Lender in an amount equal to the amount of the Loans retained by it. Such new Notes shall be ~~offered or sold except as set forth~~ dated the effective date of such assignment and shall otherwise be in the ~~following sentence~~form of the Notes replaced thereby. The Notes ~~were originally issued in a transaction exempt from registration under section 5 of~~ surrendered by the ~~Securities Act and neither~~ assigning Lender shall be returned by the ~~Note nor any portion thereof may be offered, sold or otherwise transferred in~~ Agent to the ~~absence of such registration or an applicable exemption therefrom~~Borrower marked "canceled". (f) Notwithstanding anything to the contrary set forth in this Section ~~8.6(a)~~9.6, ~~8.6(b), 8.6(c) and 8.6(e), if at~~ no Lender may assign or sell a participating interest in any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of ~~the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b)~~its Loans, any ~~(i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement~~ of its Notes or any ~~other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined~~ of its obligations under this Agreement or any other ~~Secured Note~~ Loan Document by to the ~~Noteholders, in~~ Borrower or any of its Affiliates without the ~~case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous~~ prior written consent of all ~~Noteholders shall be required with respect~~ the Lenders. (g) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, any and all financial information in such ~~waiver, amendment, modification, supplement, restatement~~ Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or ~~other revision~~ on behalf of the Borrower pursuant to this Agreement or ~~any other Secured Note Document that is~~ 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 ~~UST Non-Binding Amendment~~party to the Agreement. (h) ~~The Issuer shall be deemed~~ In addition to ~~have satisfied its obligation to provide~~ the assignments and participations permitted under the foregoing provisions of this Section 9.6, any ~~Noteholder (other than the Initial Noteholder) with any report, notice, financial statement~~ Lender may assign or ~~other information required to be provided under this Agreement~~ pledge all or any ~~other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website~~ portion of its Loans and its Notes to any Federal Reserve Bank as collateral security pursuant to Regulation A of the ~~extent such action does not conflict with~~ Board of Governors of the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership Federal Reserve System and ~~acceptance of a disclaimer~~any operating circular relating thereto.

Appears in 1 contract

Samples: Credit Agreement (Special Metals Corp)

Successors and Assigns; Participations and Assignments. ~~(a) The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender and (~~and~~ ii) any attempted assignment or transfer by the ~~Issuer~~ Borrower without such consent shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~. (ba) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~a "Participant") ~~all~~ participating interests in any Loan owing to such Lender, the Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Xxxxxx's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except any amendment, waiver or consent described in clause (w) of the proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided, that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is in Section 8.7 as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.10, 2.11 and ~~2.13~~ 2.12 (and subject to the ~~same extent~~ limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided, that, in the case of Section 2.11, such Participant shall have complied with the requirements of Section 2.11 (including the requirements under Sections 2.11(e), 2.11(f) and 2.11(g) (it being understood that the documentation required under Sections 2.11(e), 2.11(f) and 2.11(g) shall be delivered to the participating Lender) as if it was a Lender that had acquired its interest by ~~assignment pursuant to paragraph (b) of this Section 8.6~~assignment; and provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to ~~such~~ Sections 2.10, 2.11 or 2.12 (as the case may be) than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. (b) Any Lender (an "Assignor") may, in accordance with applicable law, at any time and from time to time assign to any Person (other than the Borrower or any of its Affiliates or a natural Person) (an "Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided, that (i) the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and the Borrower shall be deemed to have consented to any such assignment unless ~~such transfer~~ it objects thereto by written notice to the Lender and Administrative Agent within five Business Days after having received notice thereof) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs ~~while~~ when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be (A) with respect to Tranche A Loans, in an aggregate principal amount of less than 500,000,000 Yen, and (B) with respect to Tranche B Loans, in an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender's interests under this Agreement. To For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and ~~subject~~ (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such ~~Noteholder~~Assignor shall cease to be a party hereto). (c) The Administrative Agent, ~~on behalf~~ acting as a non-fiduciary agent of ~~Issuer~~the Borrower solely for tax purposes, shall maintain at its address referred to in Section 8.2 a copy of each Assignment and Acceptance delivered to it and a register on (the "Register") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which ~~it enters~~ Register shall be made available to the ~~name~~Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, ~~address~~ in the absence of manifest error, and ~~interest~~ 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 the Loans recorded therein for all purposes of this ~~Agreement~~ 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 (and each note shall expressly so provide). Any assignment or transfer of all ~~Participants. Each Noteholder~~ or part of a Loan evidenced by a note shall ~~refuse to register any~~ be registered on the Register only upon surrender for registration of assignment or transfer of ~~any participation in violation of~~ the ~~foregoing restrictions~~note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new notes shall be issued to the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (d) Upon its receipt of an Assignment and Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 8.6(c), together with payment to the Administrative Agent of a registration and processing fee of $4,000 (such fee not to be payable by the Borrower, except for an assignment pursuant to Section 2.15), 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. (e) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank or any other central bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable ~~exemption therefrom~~law. (f) ~~Notwithstanding Section 8.6(a)~~The Borrower, ~~8.6(b)~~upon receipt of written notice from the relevant Xxxxxx, ~~8.6(c) and 8.6(e), if at~~ agrees to issue notes to any ~~time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled~~ Lender requiring notes to ~~demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those~~ facilitate transactions of the ~~Notes under the UST Facility~~type described in paragraph (f) above. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Term Loan Agreement (Bungeltd)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender and (~~and any attempted assignment or transfer by the Issuer without such consent shall be null and void~~ii) ~~and~~ no ~~Noteholder~~ Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this ~~Section 8.6~~Agreement. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or other entities, in each case other than to any entity that such Lender has knowledge is a ~~Permitted Transferee~~ 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 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 any amendment, waiver or consent that would require the consent of all Lenders pursuant to Section 10.1 without the consent of such Participant. The Borrower agrees that 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 fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of, and subject to the requirements of, Sections 2.19, 2.20, 2.21 and 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 2.20, 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. . Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other 109 obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the 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 and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, in each case other than to an entity that such Lender has knowledge is a competitor (or an affiliate of a known competitor) of the Borrower or any Founding Member or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed (it being understood that the Borrower shall have the right to waive its consent rights hereunder by notice to the Administrative Agent) (provided that no such consent need be obtained by any Barclays Entity for a period of 60 days following the Closing Date)), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes~~ Acceptance, substantially in the form of Exhibit E (an ~~agreement by the assignee thereunder to be bound by the terms~~ “Assignment and ~~provisions of the Intercreditor Agreement~~Acceptance”), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~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 $1,000,000 in the case of the assignment of any Term Loans or $5,000,000 in the case of the assignment of any Revolving Credit Commitments (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~together with~~ unless otherwise agreed by the Borrower and the Administrative Agent and (ii) no such assignment of any ~~related~~ Revolving Credit Commitment shall be made to any holder of any 2014 Revolving Credit Loan without the consent of the Borrower in its sole and absolute discretion. 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 Section 2.19, 2.20, 2.23 and 10.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective date). Notwithstanding any provision of this Section, (i) the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 7 Business Days after having received notice thereof. For purposes of the minimum assignment amounts set forth in ~~no event may any transfer~~ this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated. (d) The Administrative Agent shall, acting solely for this purpose as an agent on behalf of the Borrower, maintain at its address referred to in Section 10.2 a ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 (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 Acceptance; thereupon, if requested by the designated Assignee, one or more new Notes in the same aggregate principal amount shall be issued to such designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ 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 Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 10.6(b), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is~~ a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more ~~than one Noteholder, the Issuer~~ Related Funds as a single assignment) (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to a Barclays 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), the Administrative Agent shall (i) promptly accept such Assignment and 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 and upon receipt by the Borrower of the old Notes (if any) for cancellation, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to 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 ~~this Section 8.6(b)~~ such Assignment and 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 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 ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERRestatement Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act~~ applicable law; provided that no such pledge or assignment of ~~1933,~~ a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as ~~amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilityparty hereto. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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 ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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(f), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In addition to the consent requirements set forth in Section 10.1, this paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such ~~waiver,~~ proposed amendment~~, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment~~. (h) ~~The Issuer shall be deemed~~ Notwithstanding the foregoing or anything to ~~have satisfied~~ the contrary set forth herein, any Lender may, at any time, without any consent, assign all or a portion of its ~~obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided~~ rights and obligations under this Agreement (including Loans or ~~any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website~~ Commitments) to the ~~extent such action does not conflict~~ Borrower in accordance with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, Section 2.11(c) on a ~~confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~non-pro rata basis.

Appears in 1 contract

Samples: Credit Agreement

Appears in 1 contract

Samples: Credit Agreement (Verint Systems Inc)

Successors and Assigns; Participations and Assignments. (ai) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Administrative Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder (and any attempted~~ each Lender. No sale, assignment or transfer by or participation of any Letter of Credit or any participation therein may be made separately from a sale, assignment, transfer or participation of a corresponding interest in the ~~Issuer without~~ Revolving Loan Commitment and the Revolving Loans of the Lender effecting such ~~consent shall be null~~ sale, assignment, transfer or participation. (ii) Any Lender may, in the ordinary course of its business and ~~void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except~~ in accordance with applicable law, at any time sell to one or more Persons (other than a natural Person) (“Participants”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Credit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Credit Documents, and the Borrower and the 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 Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment, modification or waiver of any provision of any Credit Document, or any consent to any departure by any Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the stated rate, or forgive any portion, or postpone the date for the payment, of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitments of any Lender or postpone the date of the final scheduled maturity of any Loan, in each case to the extent subject to such participation, and any agreement or instrument pursuant to which such participation is sold or transferred shall expressly provide for the provisions of this sentence. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~8.6~~13.8 as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.10 and 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender, provided that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (biii) Any ~~Noteholder~~ Lender may, ~~without~~ in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Eligible Assignee that is a Lender or any Affiliate or any Approved Fund thereof (with the consent of the ~~Issuer~~Borrower if any increased costs would result therefrom) or, ~~assign~~ with the consent of the Borrower and the Administrative Agent (which in each case shall not be unreasonably withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or ~~transfer~~ make any filing or registration with, any Governmental Authority), to ~~one~~ an Eligible Assignee (other than any Lender or ~~more assignees~~ Affiliate or Approved Fund thereof) that is ~~a Permitted Transferee~~ regularly engaged in making, purchasing or investing in loans or securities or financial institution (~~each,~~ an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Credit Documents pursuant to an Assignment and Assumption Agreement, substantially in the form of Exhibit G (the “Assignment and Assumption”), executed (either manually in the case of delivery per clause (x) below, or ~~similar agreement which includes~~ electronically in the case of delivery per clause (y) below) by such Assignee, such assigning Lender (and, in the case of an ~~agreement~~ Assignee that is not then a Lender, an Affiliate or an Approved Fund thereof, by the ~~assignee thereunder to be bound by~~ Borrower and the ~~terms~~ Administrative Agent) and ~~provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and~~ either (x) manually delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register or (y) electronically delivered to the Administrative Agent via an electronic settlement system acceptable to the Administrative Agent (which initially shall be Clear Par, ~~together with~~ LLC) (the “Electronic Settlement System”), provided that, (i) except in the case of an assignment of all of a Lender’s interests under this Agreement and except for assignments to any ~~related~~ Lender or any Affiliate or Approved Fund thereof, unless otherwise agreed to by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender, any Affiliate or any Approved Fund thereof) shall be in an aggregate principal amount of less than $1,000,000, (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 Commitment so assigned and (iii) any assignment of Revolving Credit Loans or a Revolving Credit Commitment hereunder shall require the prior written consent of the Administrative Agent and the Letter of Credit Issuer. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption (and upon delivery of such other information reasonably requested by the Administrative Agent including, without limitation, such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters and with respect to such information requested under the Patriot Act as such assignee may otherwise be required to deliver pursuant to Section 5.4(b)) (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 a Commitment as set forth therein and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto); provided that notwithstanding anything contained in any of the Credit Documents to the contrary, if such Lender is a Letter of Credit Issuer such Lender shall continue to have all rights and obligations of a Letter of Credit Issuer until the cancellation or expiration of any Letters of Credit issued by it and the reimbursement of any amounts drawn thereunder. The assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender any promissory notes it holds that represent Loans to the Administrative Agent for cancellation, and thereupon new promissory notes, if so requested by the Assignee, substantially in the form of Exhibit X-0, X-0 or D-3, as the case may be, evidencing the A Term Loans, B Term Loans and Revolving Credit Loans, respectively, owing to such Assignee. Notwithstanding any provision of this Agreement to the contrary, the consent of the Borrower shall not be required for any assignment that occurs at any time when any of the events described in Section 11.5 shall have occurred and be continuing with respect to the Borrower. (b) Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Loans to any Federal Reserve Bank in accordance with ~~any~~ applicable ~~securities laws~~ law provided, that (i) no Lender shall be relieved of any ~~state~~ of its obligations hereunder as a result of any such assignment or pledge and (ii) in no event shall any assignee or pledge be considered to be a “Lender” or entitled to require the assigning Lender to take or omit to take any action hereunder. In order to facilitate such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time to time after the Borrower has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower’s own expense, a promissory note, substantially in the form of Exhibit X-0, X-0 or D-3, as the case may be, evidencing the A Term Loans, B Term Loans and Revolving Credit Loans, respectively, owing to such Lender. (c) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (a “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 senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United ~~States; provided that~~States or any State thereof or the District of Columbia. In addition, notwithstanding anything to the contrary contained in ~~no event~~ this 13.6 any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any ~~transfer~~ processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any Eligible Assignees (consented to by the Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a ~~Note~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This section may not be ~~made if such transfer~~amended without the written consent of the SPC. (d) The Administrative Agent, ~~or such transfer together with any prior transfers~~on behalf of the Borrower, ~~would trigger registration requirements under~~ shall maintain at the ~~Exchange Act. The Issuer or its agent will maintain~~ address of the Administrative Agent referred to in Section 13.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer of any Note in violation of~~ , and the ~~foregoing restrictions~~Borrower, the ~~restrictions set forth in Section 8.6(e) or~~ Administrative Agent and the ~~restrictions set forth~~ Lenders shall treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured Note Documents as are reasonably required to accommodate~~ Credit Documents, notwithstanding any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost notice to the ~~Issuer~~ contrary. Any assignment of ~~maintaining~~ any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable requestRegister. The ~~Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b)~~ Register shall ~~bear~~ be available for inspection by the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement Borrower or any ~~other Secured Note Document that is a UST Non-Binding Amendment. Subject~~ Lender at any reasonable time and from time to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Lawtime upon reasonable prior notice. (e) ~~The Notes have~~ Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not ~~been registered under~~ then a Lender, an Affiliate or an Approved Fund thereof, by the ~~United States Securities Act~~ Borrower and the Administrative Agent) together with payment to the Administrative Agent of ~~1933~~a registration and processing fee of $3,500, 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 Lenders and the Borrower; provided however, that no such fee shall be payable if the Assignment and Assumption is delivered via the Electronic Settlement System; and provided further that, in the case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (and, to the extent such Lender is a fund, which funds are not managed by the same investment advisor as ~~amended (the “Securities Act”~~such Lender or by an Affiliate of such investment advisor), ~~or any state securities laws, and, accordingly, may not~~ only a single $3,500 such fee shall be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of payable for all such ~~registration or an applicable exemption therefrom~~contemporaneous assignments. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section ~~8.1~~13.16, ~~if there is more than one Noteholder~~ the Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s possession concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower pursuant ~~to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision~~ to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement, provided that neither the Administrative Agent nor any ~~other Secured Note Document~~ Lender shall provide to any Transferee or ~~(ii)~~ prospective Transferee any ~~advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this~~ of the Confidential Information unless such person shall have previously executed a Confidentiality Agreement ~~or any other Secured Note Document by the Noteholders,~~ in the ~~case~~ form of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.Exhibit J.

Appears in 1 contract

Samples: Credit Agreement (Bristol West Holdings Inc)

Appears in 1 contract

Samples: Senior Secured Credit Agreement (United States Marine Repair Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 (the documentation governing any such participation, a "Participation 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 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 (i) reduce the 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 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 (except as otherwise provided in any Participation Agreement) shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating -------- interest, 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 it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (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 Approved Fund or, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this -------- Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and,~~ recording in ~~each case, in accordance with any applicable securities laws of any state of~~ the ~~United States~~Register; provided that, except in ~~no event may any transfer~~ the case of an assignment of -------- all of a ~~Note~~ Lender's interests under this Agreement, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund) shall (i) be ~~made~~ 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 amounts described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Any such ~~transfer~~assignment need not be ratable as among the Facilities. Upon such execution, or delivery, acceptance and recording, from and after the effective date determined pursuant to such ~~transfer together~~ Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any ~~prior transfers~~provision of this Section 10.6, ~~would trigger registration requirements under~~ the ~~Exchange Act.~~ consent of the Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Section 8(f) shall have occurred and be continuing with respect to the Borrower. (d) The ~~Issuer or~~ Administrative Agent shall, on behalf of the Borrower, maintain at its ~~agent will maintain~~ address referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the -------- recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 10.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$3,500, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 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 Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Mattress Discounters Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower and with notice to the Syndication Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~a "Participant") ~~all~~ 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 ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Agents shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 10.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.17, 2.18 and ~~2.13~~ 2.19 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred. (c) Any Lender (an "Assignor") may, in accordance with applicable law and with written notice to the Syndication Agent, at any time and from time to time assign to any Lender or any affiliate thereof or a Person under common management with a Lender or, with the consent of the Borrower and the Syndicate Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Acceptance (an "Assignment and Acceptance") substantially in the form of Exhibit D, executed by such Assignee, such Assignor, the Syndication Agent and the Administrative Agent (and, where the consent of the Borrower is required pursuant to the foregoing provisions, by the 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 thereof) shall be in an aggregate principal amount of less than $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, the Syndication Agent and the Administrative Agent. Any such ~~transfer~~ 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 11.6, the consent of the Borrower shall not be required for any assignment which occurs ~~while an~~ at any time when any Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) The Administrative Agent (acting for this purpose as agent of the Borrower) shall maintain at its address referred to in Section 10.2 a copy of each Assignment and 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 and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register (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 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 "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person under common management with such Lender, by the Borrower, the Administrative Agent, the Syndication Agent and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (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 (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), the Administrative Agent shall (i) promptly accept such Assignment and 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 Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term 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 and/or applicable Tranche C Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment and/or Tranche B Term Loans and/or Tranche C 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 assigning Lender in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans and/or Tranche C Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Nationwide Credit Inc)

Appears in 1 contract

Samples: Credit Agreement (Borden Chemicals & Plastics Limited Partnership /De/)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender and (~~and~~ ii) any attempted assignment or transfer by the ~~Issuer~~ Borrower without such consent shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) participating interests in ~~all or a portion~~ any Loan owing to such Lender, the Commitment of such ~~Noteholder~~Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s ~~rights and~~ obligations under this Agreement ~~(including all or a portion of~~ to the ~~Notes owing~~ other parties to ~~it); provided that (A) such Noteholder’s obligations under~~ this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except any amendment, waiver or consent described in clause (i) of the proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 8.7 as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section~~ Sections 2.12, 2.13 and ~~2.13~~ 2.14 (and subject to the ~~same extent~~ limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 2.13, such Participant shall have complied with the requirements of Section 2.13 (including the requirements under Sections 2.13(f) and 2.13(g) (it being understood that the documentation required under Sections 2.13(f) and 2.13(g) shall be delivered to the participating Lender) as if it was a Lender that had acquired its interest by ~~assignment pursuant to paragraph (b) of this Section 8.6;~~ assignment, and provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to ~~such~~ Sections 2.12, 2.13 or 2.14 (as the case may be) than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Person (other than the Borrower or any of its Affiliates) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and the Borrower shall be deemed to have consented to any such assignment unless ~~such transfer~~ it objects thereto by written notice to the Lender and Administrative Agent within ten (10) Business Days after having received notice thereof) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs ~~while~~ when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this Agreement. To For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and ~~subject~~ (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such ~~Noteholder, on behalf of Issuer,~~ Assignor shall ~~maintain~~ cease to be a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”party hereto), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) The Administrative Agent, acting as a non-fiduciary agent of the Borrower solely for tax purposes, shall maintain at its address referred to in Section 8.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any notes evidencing 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 (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 Acceptance, and thereupon one or more new notes shall be issued to the designated Assignee. (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 8.6(c), together with payment to the Administrative Agent of a registration and processing fee of $3,500 (such fee not to be payable by the Borrower, except for an assignment pursuant to Section 2.17), 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. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank or any other central bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Term Loan Agreement (Bunge LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrowers, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective 77 successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ no Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (~~and~~ other than, except for any ~~attempted~~ guarantee obligation, an assignment or transfer ~~by the Issuer without such consent shall be null and void) and no Noteholder may assign~~ from Brands to Brands West or ~~otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~from Brands West to Brands). (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrowers, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 Borrowers and the 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The 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 fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (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, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) and, in the case of any assignment of Revolving Loans and Revolving Commitments, with the consent of the Issuing Lenders (which shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (other than Holdings, the Borrowers or any Affiliate thereof) (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and,~~ recording in ~~each case, in accordance with any applicable securities laws of any state of~~ the ~~United States~~Register; provided that, unless otherwise agreed by the Borrowers and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in ~~no event may any transfer~~ an aggregate principal amount of less than $5,000,000 (or, in the case of the Tranche B Term Facility and the Tranche C Term Facility, $1,000,000), in each case except in the case of an assignment of all of a ~~Note~~ Lender's interests under this Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the consent of the Borrowers shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrowers 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 Section 10.6(c). Notwithstanding the foregoing, any Revolving Lender assigning rights and obligations under this Agreement may retain any Competitive Bid Loans made if by it outstanding at such ~~transfer~~time and in such case shall retain its rights hereunder in respect of any Loans so retained until such Loans have been repaid in full in accordance with this Agreement. (d) The Administrative Agent shall, ~~or such transfer together with any prior transfers~~on behalf of the Borrowers, ~~would trigger registration requirements under the Exchange Act. The Issuer or~~ maintain at its ~~agent will maintain~~ address referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 10.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$4,000, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 10.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment (i) by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with ~~Applicable Law.~~ applicable law or (eii) ~~The Notes have not been registered under~~ by a Lender which is a Farm Credit System entity, to the ~~United States Securities Act of 1933, as amended (~~Farm Credit Funding Corp. or other appropriate funding sources and entities within the ~~“Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth~~ Farm Credit System in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an accordance with applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrowers, upon receipt of written notice from the relevant Lender, agree to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer~~ Each of Holdings, each Borrower, each Lender and the 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, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of 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 expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. (i) In the event that S&P or Xxxxx'x shall, after the date that any Lender becomes a Lender, downgrade the long-term certificate deposit ratings or long-term senior unsecured debt ratings of such Lender (or the parent company thereof), and the resulting ratings shall be ~~deemed~~ BBB+ or lower by S&P or Baal or lower by Xxxxx'x, then the Issuing Lenders shall have the right, but not the obligation, at the Borrowers' expense, upon notice to ~~have satisfied~~ such Lender, the Administrative Agent and the Borrowers, to replace (or to request the Borrowers, at the Borrowers' expense, to use their reasonable efforts to replace) such Lender with respect to such Lender's Commitment with an assignee (in accordance with and subject to the restrictions contained in this Section 10.6, including the right of the Borrowers and the Administrative Agent to consent to the identity of such assignee (which consent shall not be unreasonably withheld)), and such Lender hereby agrees to transfer and assign without recourse (in accordance with and subject to the restrictions contained in this Section 10.6) all its ~~obligation~~ interests, rights and obligations in respect of its Commitment to ~~provide any Noteholder~~ such assignee; provided, however, that (~~other than the Initial Noteholder~~i) no such assignment shall conflict with any ~~report~~law, ~~notice, financial statement~~ rule and regulation or ~~other information required~~ order of any Governmental Authority and (i) such assignee shall pay to ~~be provided under this Agreement or any other Secured Note Document, by making~~ such ~~report, notice, financial statement or other information~~ Lender in immediately available ~~by electronic media, bulletin board service or internet website~~ funds on the date of such assignment the principal of and interest and fees accrued to the ~~extent~~ date of payment on the Loans of such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerLender hereunder.

Appears in 1 contract

Samples: Credit Agreement (Interstate Bakeries Corp/De/)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Agents and their respective successors and ~~assigns permitted hereby~~assigns, except ~~that~~ that, unless the ~~Issuer~~ conditions set forth in Section 8.5 are satisfied, the Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Issuer~~its business and in accordance with applicable law, ~~assign or transfer~~ at any time sell to one or more ~~assignees that is~~ banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Credit Documents (including to loan derivative counterparts in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a ~~Permitted Transferee (each~~Lender of a participating interest to a Participant, ~~an “Assignee”) all or a portion of its rights and~~ such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance of thereof, such ~~obligations~~Lender shall remain the Lender with respect to any such Loan for all purposes under this Agreement and the other Credit Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Credit Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of any Credit Document, or any consent to any departure by any Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the stated rate, or forgive any portion, or postpone the date for the payment, of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitments of any Lender or postpone the date of the final scheduled maturity of any Loan, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 11.8 as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.8, 2.9 and ~~2.13~~ 4.4 (subject to the ~~same extent~~ requirements of those Sections) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a ~~Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6~~Lender; ~~provided,~~ provided that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred unless the sale of the participations is made with Borrower's prior written consent (not to be unreasonably withheld or delayed). (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, in consultation with the Borrower, assign to an Eligible Assignee all or any part of its rights and obligations under this Agreement with respect to its Commitments and Loans made pursuant to this Agreement and the other Credit Documents and all rights related thereto, in each case pursuant to an Assignment and Acceptance, substantially in the form of Exhibit B (an "Assignment and Acceptance"), executed by such ~~transfer occurs while~~ Eligible Assignee and such Assignor and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that, except in the case of an ~~Event~~ assignment of ~~Default~~ all of a Lender's interests under this Agreement, no such assignment to an Eligible Assignee shall ~~have occurred~~ be in an aggregate principal amount of less than $5.0 million. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Eligible Assignee thereunder shall be ~~continuing. To~~ a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and ~~subject~~ obligations of a Lender hereunder with a Commitment as set forth therein and (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such ~~Noteholder, on behalf of Issuer,~~ assigning Lender shall ~~maintain~~ cease to be a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”party hereto), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) ~~For avoidance~~ Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note its Loans to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. To the extent requested by any Lender, the Borrower shall execute and deliver to such Lender an Initial Note dated the Closing Date substantially in the form of Exhibit A-1 hereto to evidence the portion of the Initial Loan made by such Lender and with appropriate insertions ("Original Initial Notes"). On each Interest Payment Date prior to the Final Maturity Date on which the Borrower shall have elected to pay any interest through the issuance of additional Notes pursuant to Section 2.6(e), to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender on such Interest Payment Date a note dated such Interest Payment Date substantially in the form of Exhibit A-1 hereto in a principal amount equal to such Lender's pro rata portion of any PIK Interest Amount and with other appropriate insertions (each a "Subsequent Initial Note" and, together with the Original Initial Notes, the "Initial Notes"). Unless converted to an Exchange Note and to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender a Term Note dated the Initial Maturity Date substantially in the form of Exhibit A-2 hereto to evidence the Term Loan made on such date, in the principal amount of the Initial Loans held by such Lender on such date and with other appropriate insertions (collectively, the "Original Term Notes"). On or after the Initial Maturity Date, on each Interest Payment Date prior to the Final Maturity Date on which the Borrower shall have elected to pay any interest through the issuance of additional Loans pursuant to Section 2.6(e), to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender on such Interest Payment Date a Term Note dated such Interest Payment Date substantially in the form of Exhibit A-2 hereto in a principal amount equal to such Lender's pro rata portion of any PIK Interest Amount and with other appropriate insertions (each a "Subsequent Term Note"). (e) The ~~Notes have not been registered under~~ Administrative Agent, on behalf of the ~~United States Securities Act~~ Borrower, shall maintain at the Administrative Agent's Office a copy of ~~1933, as amended~~ each Assignment and Acceptance delivered to it and a register (the ~~“Securities Act”~~"Register") for the recordation of the names and addresses of the Lenders, the Commitment of, and principal amount and stated interest of the Loans owing to, each Lender from time to time and the other information necessary to meet the requirements of Treasury Regulation Section 5f.103-1(c)~~, or any state securities laws, and, accordingly, may not be offered or sold except as set forth~~ . The entries in the ~~following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may~~ Register shall be ~~offered~~conclusive, ~~sold or otherwise transferred~~ in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Credit Documents, notwithstanding any notice to the contrary. Notwithstanding anything herein to the contrary, any assignment of any Loan or other obligation hereunder shall be effective only upon (i) appropriate entries with respect thereto being made in the Register and (ii) surrender by the assigning Lender to the Administrative Agent of any Notes, if any, representing such ~~registration~~ Loan or ~~an applicable exemption therefrom~~other obligation. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (f) ~~Notwithstanding Section 8.6(a~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Eligible Assignee (and, in the case of an Eligible Assignee that is not then a Lender or an Affiliate thereof and the Administrative Agent), ~~8.6(b)~~together with payment to the Administrative Agent of a registration and processing fee of $3,500, ~~8.6(c~~the Administrative Agent shall (i) promptly accept such Assignment and ~~8.6(e), if at any time~~ Acceptance and (ii) on the ~~Notes (as defined~~ effective date determined pursuant thereto record the information contained therein in the ~~UST Facility) are registered under~~ Register and give notice of such acceptance and recordation to the ~~Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then~~ Lenders and the ~~Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility~~Borrower. (g) Subject to Section ~~8.1~~11.15, ~~if there is more than one Noteholder~~ the Borrower authorizes each Lender to disclose to any 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 that has been delivered to such Lender by or on behalf of the Borrower pursuant ~~to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision~~ to this Agreement or ~~any other Secured Note Document~~ which has been delivered to such Lender by or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval on behalf of the ~~majority of Noteholders (by Outstanding Principal as~~ Borrower in connection with such Lender's credit evaluation of the ~~date of such determination)~~Borrower and its Affiliates prior to becoming a party to this Agreement; provided that neither the ~~unanimous consent of all Noteholders~~ Administrative Agent nor any Lender shall ~~be required with respect~~ provide to any Transferee or prospective Transferee any of the Confidential Information unless such ~~waiver, amendment, modification, supplement, restatement or other revision to this~~ Person shall have previously executed a Confidentiality Agreement ~~or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ in the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms form of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.Exhibit C.

Appears in 1 contract

Samples: Senior Bridge Loan Agreement (Activant Solutions Inc /De/)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, ~~all future Noteholders~~ the Lenders, the Agents and their respective successors and ~~assigns permitted hereby~~assigns, except as otherwise provided in Section 8.4, that ~~the Issuer~~ no Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (and any ~~attempted~~ purported such assignment or transfer by ~~the Issuer~~ such Borrower without such consent of each Lender shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, in accordance with applicable Law, at any time sell to one or more banks, financial institutions or other entities (individually, a “Participant” and, collectively, the “Participants”) participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents (a “Participation”). 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, Reimbursement Obligation or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the 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, except with respect to Sections 4.10 and 4.11, under which the Participant has certain rights with respect thereto. In no event shall any Participant under any such Participation have any right to approve any amendment to or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or the stated rate of interest on, the Loans, Reimbursement Obligation or any fees payable hereunder, or postpone the date of the final maturity of the Loans or Reimbursement Obligations, in each case to the extent subject to such Participation (and, for the avoidance of doubt, the Borrowers may exercise any rights granted to it in Section 4.17 with respect to the Lender that sold a Participation to such Participant to the extent that the direction by such Participant to such Lender to not consent to any such amendment would cause the applicable Lender to be subject to the provisions of Section 4.17). The Borrowers agree that if amounts outstanding under this Agreement are due or unpaid during an Event of Default, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable Law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided that in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.8(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of, and bound by the obligations imposed on the Lenders in, Sections 4.10, 4.11 and 4.14 with respect to its Participation in the Commitments and the Loans and other extensions of credit hereunder outstanding from time to time as if it were a Lender. (c) Any Lender may, in accordance with applicable Law, at any time and from time to time assign to any Lender or any Subsidiary, Affiliate or Approved Fund thereof, or, with the consent of the Collateral Agent, and, in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (which consent shall not be unreasonably withheld or delayed), to any other Person (the “Assignee”), all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or any Subsidiary, Affiliate or Approved Fund thereof, by the Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing and the Borrowers’ Agent is not deemed to consent to such assignment, the Borrowers’ Agent) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) each such assignment to an Assignee (other than any Lender) shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (other than in the case of (A) an assignment of all of a Lender’s interests under this Agreement or (B) an assignment to another Lender, a Subsidiary, an Affiliate or an Approved Fund of such assigning Lender), unless otherwise agreed by the Collateral Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such amount to be aggregated in respect of assignments by to any Lender and the affiliates or Approved Funds thereof), (ii) in the case of an assignment by a Lender to a Bank CLO managed by such Lender or an affiliate of such Lender, unless such assignment to such Bank CLO has been consented to by the Collateral Agent, and in the case of an Assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Swing Line Lender, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (such consent not to be unreasonably withheld or delayed), the assigning Lender shall retain the sole right to approve any amendment, waiver or other modification of this Agreement or any other Loan Document; provided that the Assignment and Acceptance between such Lender and such Bank CLO may provide that such Lender will not, without the consent of such Bank CLO, agree to any amendment, modification or waiver that requires the ~~Issuer~~consent of each Lender directly affected thereby pursuant to Section 11.2, ~~assign~~ and (iii) each Assignee shall comply with the provisions of Section 4.11(e) and (iv) 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 Loans or ~~transfer to one or more assignees that is a Permitted Transferee (each~~the Commitments assigned, ~~an “Assignee”)~~ and each Lender assigning all or a portion of its rights and obligations ~~under this Agreement (including all or~~ must do so on a ~~portion of~~ pro rata basis among the ~~Notes at~~ two separate Facilities. Upon such execution, delivery, acceptance and recording, from and after the ~~time owing to it)~~ effective date determined pursuant to an such Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, (x) the ~~assignee~~ Assignee thereunder to shall be ~~bound by the terms and provisions of the Intercreditor Agreement~~a party hereto and, ~~executed by such Assignee and such Noteholder and delivered~~ to the ~~Issuer for its records~~extent provided in such Assignment and Acceptance, ~~together with any related~~ have the rights and obligations ~~thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer~~ of a ~~Note be made if such transfer, or such transfer together~~ Lender hereunder with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions Commitments as set forth ~~in Section 8.6(e~~therein, and (y) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignmentsassigning Lender thereunder shall, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the ~~Issuer of maintaining the Notes. If there is more than one Noteholder~~extent provided in such Assignment and Acceptance, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and be released from its obligations under this Agreement (~~including~~ and, in the case of an Assignment and Acceptance covering all or a the remaining portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholderassigning Lender’s rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this Section 11.7, (x) the consent of the Borrowers’ Agent shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers’ Agent, for any assignment which occurs at any time when any of the events described in Section 9.1(f) shall have occurred and be continuing and (y) the Borrowers’ Agent shall be deemed to have consented to any assignment that requires such consent pursuant to the terms thereof unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.7 shall be treated for purposes of this Agreement as a sale by such Lender of a Participation in such rights and obligations in accordance with Section 11.7(b). (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrowers, shall maintain at the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register ~~on which it enters~~ (the ~~name~~“Register”) for the recordation of the names and addresses of the Lenders (including all Assignees and successors) and the Commitments of, ~~address~~ and ~~interest~~ principal amounts of the Loans and other Obligations owing to, each Lender from time to time. The entries made in the Register shall, to the extent permitted by applicable Law, be prima facie evidence of the existence and amounts of the obligations of the Borrowers therein recorded (absent manifest error), and the Borrowers, the Administrative Agent and the Lenders 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 owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary; provided, however, that the failure of ~~all Participants~~the Administrative Agent to maintain the Register, or any error therein, shall not in any manner affect the obligation of the Borrowers to repay (with applicable interest) the Loans and other extensions of credit hereunder made to the Borrowers by such Lender in accordance with the terms of this Agreement. ~~Each Noteholder shall refuse to register any transfer~~ Any assignment of any ~~participation in violation of the foregoing restrictions~~Loan or other Obligation hereunder, ~~the restrictions set forth in Section 8.6(e)~~ whether or ~~the restrictions set forth~~ not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Note~~Register. If The Register shall be available for inspection by the Borrowers’ Agent or any ~~such participation is~~ Lender at any reasonable time and from time to time upon reasonable prior notice. The parties intend for the Loans or other Obligations to be in ~~certificated form, it~~ registered form for tax purposes and this provision shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERbe construed in accordance with that intent. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender (or any Subsidiary, Affiliate or Approved Fund thereof), by the Administrative Agent, and in the case of an assignment of the Revolving Facility Commitment, the Issuing Lenders, and the Swing Line Lender and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent), together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $3,500 (other than in the case of an assignment to a Lender or an Affiliate of a Lender or any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the applicable Register and give notice of such acceptance and recordation to the Lenders and the Borrowers’ Agent. (f) The Borrowers authorize each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee in each case, any and all financial information in such Lender’s possession concerning the Borrowers, the other Loan Parties and their Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the Borrowers or the other Loan Parties pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrowers or other Loan Parties in connection with such Lender’s credit evaluation of the Borrowers, the other the Loan Parties and their Subsidiaries or Affiliates prior to becoming a party to this Agreement; provided that such Transferee or prospective Transferee shall have agreed to be bound by the provisions of Section 11.16 hereof. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 11.7 concerning assignments of Loans and other extensions of credit hereunder and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, (i) any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act applicable Law and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any ~~advice, consent, vote, action, direction~~ pledge or ~~other matter~~ assignment by a Lender which is a fund to ~~be taken, not taken or determined under this Agreement or any other Secured Note Document by~~ its trustee for the ~~Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date~~ benefit of such ~~determination)~~trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that ~~the unanimous consent~~ no such pledge or assignment of ~~all Noteholders~~ a security interest shall ~~be required with respect to~~ release a Lender from any of its obligations hereunder or substitute any such ~~waiver, amendment, modification, supplement, restatement~~ pledgee or ~~other revision to this Agreement or any other Secured Note Document that is~~ assignee for such Lender as a ~~UST Non-Binding Amendment~~party hereto. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Cypress Environmental Partners, L.P.)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrowers, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ neither Holdings nor either Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of Holdings or the ~~Issuer~~Borrowers, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 Holdings, the 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. Holdings and the 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 105 Lender under this Agreement, provided that, in purchasing such participating interest, 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. Holdings and the Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.21, 2.22 and 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 2.22, 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. (c) Any Lender (an "Assignor") may, in accordance with applicable 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 thereof or, with the consent of Holdings and the Agents and, in the case of any assignment of Revolving Credit Commitments, the 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 for a period of 180 days following the Closing Date and (y) the consent of Holdings need not be obtained with respect to any assignment of Term Loans), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit E, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of Holdings, the Agents or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by Holdings and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,500,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~together with any related~~ unless otherwise agreed by Holdings and the Agents. 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 2.21, 2.22 and 10.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective date). Notwithstanding any provision of this Section, the consent of Holdings shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall, on behalf of Holdings and the Borrowers, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive~~ conclusive, in the absence of manifest 106 error, and ~~binding~~Holdings, ~~absent manifest error~~the 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 (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 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 relevant Borrower marked "canceled". The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by Holdings, the Borrowers or any Lender (with respect to ~~register~~ any ~~transfer~~ 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 Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 10.6(c), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is more than one Noteholder, the Issuer~~ a registration and processing fee of $3,500 (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to any Xxxxxx Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and 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 Holdings. On or prior to such effective date, the relevant Borrower, 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 ~~this Section 8.6(b)~~ such Assignment and 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 ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERClosing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Avery Berkel Holdings LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Parent, the Borrowers, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Notes and their respective successors and ~~assigns permitted hereby~~assigns, except that neither the ~~Issuer~~ Parent nor the Borrowers may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrowers, ~~assign or transfer~~ in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or funds that ~~is a Permitted Transferee~~ regularly invest in loans and/or loan participations or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), any other entities (each, ~~an “Assignee”~~a "Participant") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Note for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the 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 ~~a portion~~ 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 reduce the principal of, or interest on, the Notes or any fees payable hereunder, postpone the date of the final maturity of the Notes, consent to the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement ~~(including~~ and the other Loan Documents, release all or a substantial portion of the Collateral (other than in connection with any sale or other disposition of assets permitted by Section 7.6) or any guarantee of the Obligations, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, 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 or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (c) Any Lender 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 Lender Affiliate or, with the ~~time owing~~ consent of the Designated Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to itan additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement, the Letters of Credit and the Notes pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit D, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and ~~such Noteholder~~ the Administrative Agent) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement and the Notes). Such assignment need not be ratable as among any Tranche A Term Loan Commitments and/or Tranche A Term Loans, ~~together with any related~~ Tranche B Term Loan Commitments and/or Tranche B Term Loans and Revolving Credit Commitments and/or Revolving Credit Loans of the assigning Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with~~ such assigning Lender shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of this paragraph (c) and paragraph (g) of this Section 11.6, the consent of the Designated Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any Event of Default shall have occurred and be continuing. (d) Any Non-U.S. Lender that could become completely exempt from withholding of any ~~state~~ tax, assessment or other charge or levy imposed by or on behalf of the United ~~States;~~ States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) registered as provided ~~that~~in paragraph (f) below and substantially in the form of Exhibit I-1 (in the case of Obligations in respect of Tranche A Term Loans), Exhibit I-2 (in ~~no event~~ the case of Obligations in respect of Tranche B Term Loans), or Exhibit I-3 (in the case of Obligations in respect of Revolving Credit Loans) (each, an "Alternative Note"). Alternative Notes may ~~any~~ not be exchanged for promissory notes that are not Alternative Notes. (e) 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 2.21(b). (f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be ~~made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under~~ effective unless it has been recorded in the ~~Exchange Act.~~ Register as provided in this Section 11.6(f). (g) The ~~Issuer or~~ Administrative Agent shall maintain at its ~~agent will maintain~~ address referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders (including Alternative Noteholders) and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrowers or any Lender at any reasonable time and from time to ~~register any transfer~~ time upon reasonable prior notice. (h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Designated Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $2,000 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a Lender or is a Lender Affiliate), the Administrative Agent shall (i) promptly accept such Assignment and 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 Designated Borrower. On or prior to such effective date, the Borrowers, at their own expense, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Tranche A Term Note and/or Tranche B Term Note, as the case may be, to the order of such Assignee (or, in the case of any Alternative Note, payable to such Assignee or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, a new Revolving Credit Note, Tranche A Term Note ~~in violation~~ and/or Tranche B Term Note, as the case may be, to the order of the ~~foregoing restrictions~~assigning Lender (or, in the case of any Alternative Note, payable to such assigning Lender or its registered assigns) in an amount equal to the Revolving Credit Commitment, Tranche A Loan and/or Tranche B Loan, as the case may be, retained by it hereunder. Such new Notes shall be dated the Original Closing Date and shall otherwise be in the form of the Note replaced thereby. (i) Each of the Parent and the Borrowers authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Parent, the ~~restrictions set forth in Section 8.6(e)~~ Borrowers and their respective Affiliates which has been delivered to such Lender by or on behalf of the Parent or the ~~restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications~~ Borrowers pursuant to this Agreement ~~and the other Secured Note Documents as are reasonably required~~ or which has been delivered to ~~accommodate any~~ such ~~assignments, including, without limitation, amendments~~ Lender by or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent on behalf of the ~~Issuer, sell participations to a Permitted Transferee (a “Participant”) in all~~ Parent or ~~a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of~~ the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrowers in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note~~Parent, ~~would trigger registration requirements under~~ the ~~Exchange Act. Any agreement pursuant~~ Borrowers and their respective Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dj) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not Nothing herein shall prohibit ~~assignments creating security interests in Notes, including, without limitation,~~ or restrict any ~~pledge~~ Lender from (i) pledging or ~~assignment by a Noteholder of~~ assigning any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document law or (ii) with the prior consent of the Administrative Agent and the Borrowers (which, in each case, shall not be unreasonably withheld or delayed), pledging its rights in connection with any ~~advice, consent, vote, action, direction~~ Loan or ~~other matter~~ Note to ~~be taken, not taken or determined under this Agreement or~~ any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding AmendmentPerson. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Kirklands Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agent and ~~any attempted assignment~~ each Lender. Nothing expressed or ~~transfer by the Issuer without such consent~~ implied herein is intended to give, or shall be ~~null~~ construed to give, any Person, other than the parties hereto and ~~void)~~ their permitted successors and ~~no Noteholder may assign~~ assigns hereunder, any benefit or ~~otherwise transfer its rights~~ legal or ~~obligations hereunder except in accordance with~~ equitable right, remedy or claim under or by virtue of this ~~Section 8.6~~Agreement or under or by virtue of any provision herein. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 that no such participation to a Participant shall be in an ~~“Assignee”)~~ aggregate principal amount of less than $5,000,000 (other than in the case of a participation of all or of a ~~portion~~ Lender's interests under this Agreement), unless otherw`ise agreed by the Borrower and the Agent. In the event of ~~its rights and~~ any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of 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 ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 10.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.17, 2.18 and ~~2.13~~ 2.19 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such ~~transfer occurred unless~~ participation occurred. (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, with the consent of the Borrower, and the Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such ~~transfer occurs while an~~ consent need be obtained in the case of any assignment made when any Event of Default shall have occurred and be continuing), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such Assignor and the Agent (and, where the consent of the Borrower is required pursuant to the foregoing provisions, by the Borrower) and delivered to the 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) shall be in an aggregate principal amount of less than $8,000,000 (or, in the case of any Tranche C Term Loan, $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 Agent. To 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and ~~subject~~ (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such ~~Noteholder, on behalf of Issuer,~~ assigning Lender shall ~~maintain~~ cease to be a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”party hereto), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) The Agent shall maintain at its address referred to in Section 10.2 a copy of each Assignment and 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 and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan whether or not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register (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 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 Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person under common management with such Lender, by the Borrower, the Agent and the Issuing Lender) together with payment to the Agent of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable 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), the Agent shall (i) promptly accept such Assignment and 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 Agent (in exchange for the Revolving Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Notes, as the case may be, to 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 Acceptance and, if the 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 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 Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Friendly Ice Cream Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, with notice to, but without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or other entities (other than any entity that is in the same line of business as the Borrower and is a ~~Permitted Transferee~~ direct competitor of the Borrower) (each, ~~an “Assignee”~~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 ~~or a portion of its~~ purposes under this Agreement and the other Loan Documents, and the Borrower and the 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing -------- such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 4.9, 4.10 and 4.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section -------- 4.10, 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. (~~including~~ 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 any Approved Fund or, with the consent of the Borrower, the Syndication Agent and the Administrative Agent (which, in the case of the Borrower, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or ~~a portion~~ any part of its rights and -------- obligations under this Agreement and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent (with a copy to the Syndication Agent) for its ~~records~~acceptance and recording in the Register; provided that unless otherwise agreed -------- by the Borrower and the Administrative Agent (x) no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $1,000,000 and the aggregate principal amount of the assigning Lender's Revolving Commitment and Loans remaining after such assignment shall not be less than $1,000,000, ~~together with~~ in each case except in the case of an assignment of all of a Lender's interests under this Agreement), (y) in the case of any ~~related~~ assignment of Revolving Commitments (other than to a Lender or a Lender Affiliate), the consent of each Issuing Lender shall be required (which shall not be unreasonably withheld or delayed), and (z) until the first anniversary of the Closing Date, no consent shall be required for any assignment by the Syndication Agent or any of its Affiliates (other than as agreed to between the Administrative Agent and the Syndication Agent). For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section 11.6, the consent of the ~~United States; provided that~~Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Section 9(f) (with respect to the Borrower) shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower, the Syndication Agent 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 ~~no event may any transfer~~ the first sentence of this Section 11.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 11.2 a ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the -------- recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 11.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for~~ Administrative Agent of a registration and processing fee of $3,500 (except, in the ~~performance~~ case of ~~such obligations, (C)~~ an assignment by or to the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement Syndication Agent or any ~~other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms~~ of ~~this Section 8.6(c~~its Affiliates), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 11.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Each of Holdings, the ~~Initial Noteholder) with any report~~Borrower, ~~notice, financial statement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; provided, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 1 contract

Samples: Credit Agreement (Appleton Papers Inc/Wi)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of TWTC, the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~a "Participant") ~~all~~ ----------- 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 ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ -------- Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 10.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.16, 2.17 and ~~2.13~~ 2.18 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 2.19, such Participant shall have -------- complied with the requirements of said Section and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no -------- ------- Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred. (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 Approved Fund or, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations -------- under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that, unless otherwise agreed by the Borrower and the Administrative Agent, no such ~~transfer occurs while~~ assignment to an ~~Event~~ Assignee (other than any Lender or any affiliate of ~~Default~~ any Lender or any Approved Fund) shall ~~have occurred~~ be in an aggregate principal amount of less than $5,000,000 (or, in the case of the Tranche B Term Facility, $1,000,000), in each case 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, the amount described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Any such assignment need not be ~~continuing~~ratable as among the Facilities. To Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and ~~subject~~ (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such ~~Noteholder, on behalf of Issuer,~~ Assignor shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter cease to be ~~taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i~~a party hereto) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required except with respect to ~~any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment~~its obligations under Section 10. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Time Warner Telecom Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender and (~~and any attempted assignment or transfer by the Issuer without such consent shall be null and void~~ii) ~~and~~ no ~~Noteholder~~ Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this ~~Section 8.6~~Agreement. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or other entities, in each case other than to any entity that such Lender has knowledge is a ~~Permitted Transferee~~ 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 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 any amendment, waiver or consent that would require the consent of all Lenders pursuant to Section 10.1 without the consent of such Participant. The Borrower agrees that 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 fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of, and subject to the requirements of, Sections 2.19, 2.20, 2.21 and 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 2.20, 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. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, in each case other than to an entity that such Lender has knowledge is a competitor (or an affiliate of a known competitor) of the Borrower or any Founding Member or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed (it being understood that the Borrower shall have the right to waive its consent rights hereunder by notice to the Administrative Agent and such consent or waiver by the Borrower (if not withheld) shall be provided within three Business Days) (provided that no such consent need be obtained by any Xxxxxx Entity for a period of 60 days following the Closing Date), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit E, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment 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 the assignment of any Term Loans or $5,000,000 in the case of the assignment of any Revolving Credit Commitments (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~together with any related~~ 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 Section 2.19, 2.20, 2.23 and 10.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective 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 ~~no event may any transfer~~ this paragraph, multiple assignments by two or more 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 ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 (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 Acceptance; thereupon, if requested by the designated Assignee, one or more new Notes in the same aggregate principal amount shall be issued to such designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ 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 Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 10.6(b), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is~~ a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more ~~than one Noteholder, the Issuer~~ Related Funds as a single assignment) (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to a 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), the Administrative Agent shall (i) promptly accept such Assignment and 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 and upon receipt by the Borrower of the old Notes (if any) for cancellation, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and 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 ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERClosing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act~~ applicable law; provided that no such pledge or assignment of ~~1933,~~ a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as ~~amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilityparty hereto. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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 ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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(f), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to ~~any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall~~ the Borrower may be ~~deemed to have satisfied its obligation to provide any Noteholder (other than~~ disclosed only with the ~~Initial Noteholder) with any report, notice, financial statement or other information required to~~ Borrower’s consent which will not be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website unreasonably withheld. In addition to the ~~extent~~ consent requirements set forth in Section 10.1, this paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerproposed amendment.

Appears in 1 contract

Samples: Credit Agreement (National CineMedia, Inc.)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Arranger, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Arranger, the Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 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 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 that, in purchasing such participating interest, 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 also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 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 a Lender; provided that, in the case of Section 2.20, such Participant shall have complied with the requirements of said 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. (c) Any Lender (an "Assignor") may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lenders 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 its affiliates, (y) the consent of neither the Administrative Agent nor the Borrower need be obtained with respect to any assignment of funded Term Loans and (z) no such consent need be obtained for the assignment by a Lender to its affiliates), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes~~ Acceptance, substantially in the form of Exhibit D (an ~~agreement by the assignee thereunder to be bound by the terms~~ "Assignment and ~~provisions of the Intercreditor Agreement~~Acceptance"), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent, the Issuing Lenders or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together~~ acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 (with ~~any related rights~~ respect to Term Loans and ~~obligations thereunder and~~$5,000,000 with respect to the Revolving Credit Facility (other than, in each case, in ~~accordance~~ 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. 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~any applicable securities laws~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of ~~any state~~ an Assignment and 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 2.19, 2.20, 2.21, 9.12 and 10.5 in respect of the ~~United States; provided that~~period prior to such effective 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 exist and be continuing. For purposes of the minimum assignment amounts set forth in ~~no event may any transfer~~ this paragraph, multiple assignments by two or more 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 ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 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 ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender's Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ 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 ~~Issuer~~Administrative Agent of a registration and processing fee of $3,500 (if required by the Administrative Agent and, ~~sell participations~~ in any case, treating multiple, simultaneous assignments by or to two or more Related Funds as a ~~Permitted Transferee~~ single assignment) (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a ~~“Participant”) in all~~ Lender or is an affiliate or Related Fund of a Lender or a ~~portion of such Noteholder’s rights and obligations~~ Person under ~~this Agreement (including all or~~ common management with a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cLender), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as if 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 were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the ~~terms~~ order of ~~this Section 8.6(c)~~the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, ~~each Participant also~~ as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ dated the ~~benefits of Section 8.7 as though it were~~ Closing Date and shall otherwise be in the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNotes replaced thereby. (df) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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 ~~Section 8.6(b), any~~ this Agreement; provided that (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.nothing

Appears in 1 contract

Samples: Credit Agreement (Gentiva Health Services Inc)

Appears in 1 contract

Samples: Credit Agreement (Baldwin Technology Co Inc)

Appears in 1 contract

Samples: Revolving Credit and Guarantee Agreement (Fpa Medical Management Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Issuing Bank, the Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of each Lender and the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6Issuing Bank. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. 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 to the other parties for the performance thereof, 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 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. The Borrower also agrees that each Participant shall be entitled to the benefits of subsections 5.9, 5.10 and 5.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender. (c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the ~~Issuer~~Agent (which shall not be unreasonably withheld), ~~assign or transfer~~ to ~~one or more assignees that is a Permitted Transferee~~ another Person (~~each,~~ "an “Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit ------- S, executed by such Assignee, such assigning Lender (and, in the case of an - Assignee ~~and such Noteholder~~ that is not then a Lender or an affiliate thereof, by the Agent) and delivered to the ~~Issuer~~ Agent for its ~~records~~acceptance and recording in the Register, ~~together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States;~~ provided that, in ~~no event may~~ the case of any ~~transfer~~ such assignment to an additional Assignee, the sum of the aggregate principal amount of the Loans and the aggregate amount of the unused Commitments being assigned and, if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Loans and the aggregate amount of the unused Commitments remaining with the assigning Lender are each not less than $5,000,000. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a ~~Note~~ Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be ~~made if~~ released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such ~~transfer~~assigning Lender shall cease to be a party hereto). Notwithstanding any provision of paragraph (e) of this subsection, ~~or such transfer together with~~ unless requested by the Assignee and/or the assigning Lender, Notes shall not be required to be executed and delivered by the Borrower, for any ~~prior transfers~~assignment which occurs at any time when any of the events described in Section 10(f) shall have occurred and be continuing. (d) The Agent, ~~would trigger registration requirements under~~ on behalf of the ~~Exchange Act. The Issuer or its agent will~~ Borrower, shall maintain at the address of the Agent referred to in subsection 12.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitments of, and principal ~~amount~~ amounts of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer of any Note in violation of~~ , and the ~~foregoing restrictions~~Borrower, the ~~restrictions set forth in Section 8.6(e) or~~ Agent and the ~~restrictions set forth~~ Lenders shall treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured Note Documents as are reasonably required~~ Loan Documents, notwithstanding any notice to ~~accommodate~~ the contrary. Any assignment of any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Agent) together with payment by the Assignee or the assigning Lender to the Agent of a registration and processing fee of $3,500, the Agent shall (i) promptly accept such ~~assignments, including, without limitation, amendments or modifications which provide for~~ Assignment and Acceptance and (ii) on the ~~accommodation~~ effective date determined pursuant thereto record the information contained therein in the Register and give notice of ~~multiple holders~~ such acceptance and recordation to the Lenders and the ~~appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost~~ Borrower. (f) Subject to the ~~Issuer~~ provisions of ~~maintaining the Notes. If there is more than one Noteholder~~subsection 12.16, the ~~Issuer shall provide all information and documents delivered hereunder~~ Borrower authorizes each Lender to ~~the Initial Noteholder~~ disclose to any ~~other Noteholder upon~~ Participant or Assignee (each, a Transferee") and any prospective Transferee any and all financial information in such ~~Noteholder’s reasonable request. The Initial Note~~ Lender's possession concerning the Borrower, its wholly owned Domestic Subsidiaries and ~~each additional Note issued pursuant~~ its Affiliates which has been delivered to ~~Section 2.3(b) in connection with an assignment~~ such Lender by or on behalf of the Borrower pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent Agreement or which has been delivered to such Lender by or on behalf of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrower in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note~~Borrower, ~~would trigger registration requirements under the Exchange Act. Any agreement pursuant~~ its wholly owned Domestic Subsidiaries and its Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 8.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933~~applicable law, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that ~~the unanimous consent~~ no such assignment shall release a Lender from any of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentits obligations hereunder. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Gencor Industries Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Parent, Holdings, the ~~parties hereto~~Borrower, the Lenders, the Arranger, the Agents, all future ~~Noteholders~~ holders of the Term Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that none of Parent, Holdings or the ~~Issuer~~ Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of ~~its~~ their respective rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Arranger, the Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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, the Arranger 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 Parent or any Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Term Loans or any fees payable hereunder, or postpone the date of the final maturity of the Term Loans, in each case to the extent subject to such participation. 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 fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Term Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (c) Any Lender (an "Assignor") may, in accordance with applicable law and upon written notice to the Syndication Agent, at any time and from time to time assign to any Lender any affiliate thereof or Affiliated Fund of the assigning Lender or of another Lender or, with the consent of the Borrower and the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that (x) no such consent need be obtained by a Lehman Entity for a period of 180 days following the Closinx Xxxx and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term Loans), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes~~ Acceptance, substantially in the form of Exhibit E (an ~~agreement by the assignee thereunder to be bound by the terms~~ "Assignment and ~~provisions of the Intercreditor Agreement~~Acceptance"), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower or the Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or Affiliated Fund) shall be in an aggregate principal amount of less than $10,000,000, ~~together with any related~~ unless otherwise agreed by the Borrower, the Syndication Agent and the Administrative Agent. Any such assignment need not be ratable as among the Facility. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section, the consent of the ~~United States; provided that~~Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the principal amount of of, and interest accrued on, the ~~Notes (and stated interest thereon) held by~~ Term Loans owing to each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 Notes evidencing such Term Loans recorded therein for all purposes of this Agreement. Any assignment of any Term Loan, whether or not evidenced by a Term Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Term Note shall expressly so provide). Any assignment or transfer of all or part of a Term Loan evidenced by a Term Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Term Note evidencing such Term Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or more new Term Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Term Notes shall be returned by the Administrative Agent to the Borrower marked "canceled". The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ 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 Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 10.6(c), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is more than one Noteholder, the Issuer~~ a registration and processing fee of $3,500 (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment ~~pursuant~~ by or to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(eOriginal Lender) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (~~THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR~~z) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of ~~each~~ an Assignee which is already a Lender or is an affiliate of ~~clauses~~ a Lender or an Affiliated Fund), the Administrative Agent shall (i) promptly accept such Assignment and 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 ~~require~~ execute and deliver to the ~~consent or approval~~ Administrative Agent (in exchange for the applicable Term Notes, as the case may be, of the ~~majority of Noteholders (~~assigning Lender) new applicable Term Notes to such Assignee or its registered assigns in an amount equal to the applicable Term Loans, assumed or acquired by ~~Outstanding Principal~~ it pursuant to such Assignment and Acceptance and, if the Assignor has retained Term Loans, upon request, new Term Notes, to the Assignor or its registered assigns in an amount equal to the applicable Term Loans, as the case may be, retained by it hereunder. Such new Term Note or Term Notes shall be dated the Closing Date and shall otherwise be in the form of the ~~date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement~~ Term Note or ~~other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment~~Term Notes replaced thereby. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Williams Companies Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, in the ordinary course of its business, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 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 the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the 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 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. 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 also agrees that each Participant shall be entitled to the benefits and subject to the obligations of Sections 2.15, 2.16 and 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 or Assignee under Section 10.6(c); provided that, in the case of Section 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. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the 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 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 of a Lender or, with the consent of the Borrower and the Administrative Agent (which shall not be unreasonably withheld or delayed) (provided that no consent from the applicable parties need be obtained by any U.S. Bank Entity in its capacity as Assignor), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit D, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided further that with respect to assignments of Loans, ~~together with~~ no such assignment to an Assignee (other than any ~~related~~ Lender or any Affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $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. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and 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 Section 2.15, 2.16 and 10.5 in respect of the period prior to such effective 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. (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 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 and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each ~~case~~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 ~~applicable securities laws~~ assignment of rights and obligations of any ~~state~~ 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 shall, on behalf of the ~~United States; provided that~~Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (and each Note shall expressly so provide). The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (h) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of~~ other Person is required by Section 10.6(c), by each such other Person) together with payment by the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ applicable Assignor or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost Assignee to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is~~ a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more ~~than one Noteholder, the Issuer~~ Related Funds as a single assignment) (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to a U.S. Bank 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), the Administrative Agent shall (i) promptly accept such Assignment and 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. The Borrower, at its own expense, promptly upon receipt of a request by the Administrative Agent, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Loans assumed or acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and Acceptance and, if the Assignor has retained a Loan, upon request, a new Note to the order of the Assignor in an amount equal to the Loan retained by it hereunder. Such new Note or Notes shall ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUEReffective date of the relevant assignment and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (di) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (ej) ~~The Notes have not been registered under~~ Notwithstanding anything to the ~~United States Securities Act of 1933~~contrary contained herein, ~~as amended~~ any Lender (~~the~~ a “~~Securities Act~~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 ~~state securities laws, and, accordingly, may not~~ part of any Loan that such Granting Lender would otherwise be ~~offered or sold except as set forth in~~ obligated to make to the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder Borrower pursuant to ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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 ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to ~~any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall~~ the Borrower may be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict disclosed only with the ~~terms~~ Borrower’s consent which will not be unreasonably withheld. This paragraph (f) may not be amended without the written consent of ~~this Agreement or Applicable Law. In connection~~ any SPC with ~~providing access to~~ Loans outstanding at the ~~Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access~~ time of such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~proposed amendment.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Northwestern Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~REIT, the Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that neither the ~~Issuer~~ REIT nor the Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each of the REIT and 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 it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. 100 107 (c) Any Lender (an "Assignor") may, in accordance with applicable law and upon written notice to the Syndication Agent, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by Lehmxx Xxxmercial Paper Inc. for a period of 180 days following the Closing Date), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit D, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Agents is required pursuant to the foregoing provisions, by the Agents) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $10,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~together with any related~~ unless otherwise agreed by the Syndication Agent and the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with any applicable securities laws of any state~~ such Assignor shall cease to be a party hereto). (d) The Administrative Agent shall, on behalf of the ~~United States; provided that~~Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 Acceptance; thereupon one or more new Notes in the same 101 108 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 "cancelled". The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender at any reasonable time and from time to ~~register~~ time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any ~~transfer~~ case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 10.6(c), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is more than one Noteholder, the Issuer~~ a registration and processing fee of $3,500 (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to Lehmxx Xxxmercial Paper Inc. 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), the Administrative Agent shall (i) promptly accept such Assignment and 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 Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the applicable Loans acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and Acceptance and, if the Assignor has retained Loans upon request, a new Note to the order of the Assignor in an amount equal to the Loans retained by it hereunder. Such new Note shall ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERClosing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Interim Term Loan Agreement (Apartment Investment & Management Co)

Appears in 1 contract

Samples: Credit Agreement (Baldwin Technology Co Inc)

Successors and Assigns; Participations and Assignments. (ai) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Newco 4, Parent, the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Administrative Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of each Lender. (ii) Any Lender may, in the ~~Initial Noteholder (~~ordinary course of its business and ~~any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except~~ in accordance with ~~this Section 8.6. (b) Any Noteholder may~~applicable law, ~~without the consent of the Issuer, assign or transfer~~ at any time sell to one or more ~~assignees that is~~ banks or other entities ("PARTICIPANTS") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Credit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a ~~Permitted Transferee (each~~Lender of a participating interest to a Participant, ~~an “Assignee”) all or a portion of its rights and~~ such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Credit Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Credit Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of any Credit Document, or any consent to any departure by any Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the stated rate, or forgive any portion, or postpone the date for the payment, of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitments of any Lender or postpone the date of the final scheduled maturity of any Loan, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is in Section 13.7 as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12,~~ Sections 2.10 and ~~2.13~~ 2.11 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it were a ~~Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided~~Lender, PROVIDED that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred unless such transfer occurs while an Event~~ occurred. (iii) Any Lender may, in the ordinary course of ~~Default~~ its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate thereof or Approved Fund with respect thereto (with the consent of the Borrower if any increased costs would result therefrom) or, with the consent of the Borrower and the Administrative Agent (which in each case shall not be unreasonably withheld, it being understood that, without limitation, the Borrower shall have ~~occurred~~ the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority), to an additional bank or fund that is regularly engaged in making, purchasing or investing in loans or securities or financial institution (an "ASSIGNEE") all or any part of its rights and obligations under this Agreement and the other Credit Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender, an Affiliate thereof or an Approved Fund with respect thereto, by the Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register, PROVIDED that, (a) except in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed to by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender, any Affiliate thereof or any Approved Fund with respect thereto) shall be ~~continuing~~in an aggregate principal amount of less than $5,000,000 and (b) after giving effect to each such assignment, the Revolving Credit Commitment of each Lender having a Euro Revolving Credit Commitment or Yen Revolving Credit Commitment shall be equal to or greater than such Lender's Euro Revolving Credit Commitment, if any, and Yen Revolving Credit Commitment, if any. To Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and ~~subject~~ obligations of a Lender hereunder with a Commitment as set forth therein and (y) the assigning Lender thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such ~~Noteholder, on behalf~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of ~~Issuer, shall maintain a register on which it enters the name, address and interest in~~ this Agreement ~~of all Participants. Each Noteholder shall refuse~~ to ~~register any transfer of any participation in violation~~ the contrary, the consent of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it~~ Borrower shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be ~~offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor~~ required for any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if assignment that occurs at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those when any of the ~~Notes under the UST Facility. (g) Subject to~~ events described in Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to 11.5 shall have occurred and be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required continuing with respect to ~~any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment~~the Borrower. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Willis Corroon Group LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the amounts owing hereunder and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities ("PARTICIPANTS") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment, LC Exposure and Credit-Linked Deposit of such Lender and any other interest hereunder and under the other Loan Documents without notice to or the consent of the ~~Issuer~~Borrower or the Administrative Agent. In the event of any such sale by a Lender of a participating interest to a Participant, ~~assign or transfer to one or more assignees that is a Permitted Transferee (each, an “Assignee”) all or a portion of its rights and~~ such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Note for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in no event may any participation in a Note be made if~~ the other Loan Documents and such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder Lender shall retain the sole right to enforce ~~this Agreement~~ the obligations of the Borrower relating to the Loans and other obligations owing to such Lender and to approve any amendment, ~~modification~~ modification, or waiver of any provision of this ~~Agreement; provided that~~ Agreement (other than amendments, modifications, or waivers (i) decreasing the amount of principal of or the rate at which interest is payable on such ~~agreement may provide that~~ Loans or Notes or Credit-Linked Deposit, (ii) extending any scheduled principal payment date or date fixed for the payment of interest on such ~~Noteholder will not~~Loans or Notes or Credit-Linked Deposit, ~~without the consent~~ (iii) extending its Commitment or LC Exposure, (iv) permitting any assignment or transfer of any of the ~~Participant~~Borrower's rights or obligations under this Agreement) or (v) releasing all or substantially all of the Collateral. The Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, ~~agree~~ or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any ~~waiver, amendment, modification, supplement, restatement or other revision~~ Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any ~~other Secured Note Document that is~~ Note; PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in SECTION 9.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~SECTION 2.15, SECTION 2.16 and ~~2.13~~ SECTION 2.17 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it were a ~~Noteholder~~ Lender; PROVIDED that, in the case of SECTION 2.16, such Participant shall have complied with the requirements of said Section; and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided~~PROVIDED, FURTHER, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred. (c) Any Lender, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time may assign to any Lender or any affiliate or Approved Fund thereof, or, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), to an additional bank, financial institution, fund or commingled investment vehicle, or other Person (an "ASSIGNEE") all or any pro rata portion of its rights and obligations under this Agreement and the Notes pursuant to an assignment agreement, substantially in the form of EXHIBIT C (or such other form approved by the Administrative Agent's in its sole discretion) (an "ASSIGNMENT AND ASSUMPTION AGREEMENT"), executed by such Assignee, such assigning Lender and, in the case of an Assignee that is not then a Lender or an affiliate or Approved Fund thereof, by the Administrative Agent and delivered to the Administrative Agent for its acceptance and recording in the Register (such Assignment and Assumption Agreement to be electronically execute and deliver to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent (which initially shall be ClearPar, LLC) or, if no such system is then acceptable to the Administrative Agent, by manual execution and delivery); PROVIDED that (i) any such assignment must be (A) a pro rata assignment to such assignee with respect to all of its rights and interests as a Lender hereunder and (B) a pro rata assignment to such assignee with respect to all of its rights and interests as a lender under the 364-Day Credit Agreement, (ii) in a minimum amount equal to the lesser of $1,000,000 and the aggregate Commitments and LC Exposure and outstanding Loans and Credit-Linked Deposits of such Lender then in effect unless (y) otherwise agreed to by each of the Borrower and the Administrative Agent or (z) such ~~transfer occurs while~~ assignment is to a Lender, an ~~Event~~ Affiliate of ~~Default~~ a Lender or an Approved Fund of a Lender, and (iii) after giving effect to any such assignment, such Lender shall have ~~occurred~~ either (x) sold all its rights and obligations hereunder and under the Notes or (y) retained at least $1,000,000 of the aggregate Commitments and LC Exposure and outstanding Loans and Credit-Linked Deposits. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption Agreement, (1) the Assignee thereunder shall be ~~continuing. To~~ a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Assumption Agreement, have the rights and ~~subject~~ obligations of a Lender hereunder with a Commitment and LC Exposure and Loans and Credit-Linked Deposits as set forth therein and (2) the assigning Lender thereunder, to the ~~terms of this Section 8.6(c)~~extent provided in such Assignment and Assumption Agreement, ~~each Participant also~~ shall be ~~entitled to~~ released from its obligations under this Agreement (and, in the ~~benefits~~ case of ~~Section 8.7 as though it were~~ an Assignment and Assumption Agreement covering all or the ~~Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s~~ remaining portion of an assigning Lender's rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto; PROVIDED that the provisions of SECTION 2.15, ~~on behalf of Issuer~~SECTION 2.16, SECTION 2.17 and SECTION 9.5 shall ~~maintain a register on which it enters~~ continue to benefit such assigning Lender to the ~~name~~extent required by such Sections). On or prior to the effective date determined pursuant to such Assignment and Assumption Agreement, ~~address and interest~~ (i) appropriate entries shall be made in ~~this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation~~ the accounts of the ~~foregoing restrictions,~~ assigning Lender and the ~~restrictions set forth~~ Register evidencing such assignment and releasing the Borrower from any and all obligations to the assigning Lender in ~~Section 8.6(e~~respect of the assigned Loan or Loans and Credit-Linked Deposits and (ii) appropriate entries evidencing the assigned Loan or ~~the restrictions set forth~~ Loans shall be made in the ~~Note~~accounts of the Assignee and the Register as required by Section 9.6(d). If In the event that any Notes have been issued in respect of the assigned Loan or Loans, such ~~participation is in certificated form, it~~ Notes shall ~~bear~~ be marked "cancelled" and surrendered by the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERassigning Lender to the Administrative Agent for return to the Borrower. (d) ~~For avoidance~~ The Administrative Agent, acting for this purpose as an agent of ~~doubt~~the Borrower, shall maintain, at its address referred to in SECTION 9.2, a copy of each Assignment and Assumption Agreement delivered to it and a register (the "REGISTER") for the recordation of the names and addresses of the Lenders and the Commitment and LC Exposure of, and principal amount of the Loans owing to, and Credit-Linked Deposits of each Lender from time to time. To the extent permitted by applicable law, the ~~parties~~ entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower and the Administrative Agent may (and, in the case of any Loan not evidenced by a Note, shall) treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption Agreement executed by the assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Administrative Agent ) together with payment by the assigning Lender or by the Assignee to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall promptly accept such Assignment and Assumption Agreement and, on the effective date determined pursuant thereto, shall record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. (f) Notwithstanding anything to the contrary contained herein, any Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle (a "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 and Credit-Linked Deposit that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; PROVIDED that (i) nothing herein shall constitute a commitment by any SPC to make any advance hereunder, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan and Credit-Linked Deposit pursuant to the terms hereof. The making of a Loan and Credit-Linked Deposit by an SPC hereunder shall utilize the applicable Commitment and LC Exposure of the Granting Lender to the same extent, and 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 senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this SECTION 9.6(f), any SPC may (i) with notice to, but 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 and Credit-Linked Deposits to the Granting Lender or to any financial institutions (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and Credit-Linked Deposits and (ii) disclose on a confidential basis any non-public information relating to its Loans and Credit-Linked Deposits to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This section may not be amended without the written consent of the SPC. (g) The Borrower authorizes the Lenders to disclose to any Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee, any and all financial information in the Lenders' possession concerning the Borrower and its respective Affiliates which has been delivered to the Administrative Agent or the Lenders by or on behalf of the Borrower pursuant to this Agreement ~~acknowledge~~ or which has been delivered to the Administrative Agent or the Lenders by or on behalf of the Borrower in connection with the Lender's credit evaluation of the Borrower and its respective Affiliates prior to becoming a party to this Agreement; PROVIDED that each such Transferee and prospective Transferee agrees in writing to be bound by the provisions of ~~this~~ Section ~~8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not~~ 9.8. (h) Nothing herein shall prohibit ~~assignments creating security interests in Notes, including, without limitation,~~ any ~~pledge~~ Lender from pledging or ~~assignment by a Noteholder of~~ assigning any Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The~~ applicable law. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or Administrative Agent, assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes ~~have not been registered~~ or any other instrument evidencing its rights as a Lender under ~~the United States Securities Act of 1933~~this Agreement, ~~as amended (the “Securities Act”)~~to any holder of, trustee for, or any ~~state~~ other representative of holders of, obligations owed or securities ~~laws~~issued, ~~and~~by such fund, ~~accordingly, may not be offered~~ as security for such obligations or ~~sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor~~ securities; PROVIDED that any ~~portion thereof may be offered, sold~~ foreclosure or ~~otherwise transferred in the absence of~~ similar action by such ~~registration~~ trustee or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders representative shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website subject to the ~~extent such action does not conflict with the terms~~ provisions of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerSECTION 9.6 concerning assignments.

Appears in 1 contract

Samples: Credit Agreement (Aquila Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors (which shall include, in the case of any Lender, any entity resulting from a merger or consolidation) and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower or the Administrative Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, a "Participant"), including, without limitation, any Conduit Participant, participating interests in any Loan owing to such Lender, any Tranche A Incremental Term Commitment or 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 obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, 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 (i) reduce the amount or extend the scheduled date of amortization or maturity of any Loan, (ii) reduce the rate of interest or any fee or extend any due date thereof or (iii) increase the amount or extend the expiry date of any Lender's commitment, in each case to 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 it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18 with respect to its participation in the Tranche A Incremental Term Commitments and the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. 83 78 (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 Approved Fund or, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and,~~ recording in ~~each case, in accordance with any applicable securities laws of any state of~~ the ~~United States~~Register; provided that, except in ~~no event may any transfer~~ the case of an assignment of all of a ~~Note~~ Lender's interests under this Agreement, no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund, each an "Intracreditor Assignee") shall (i) be ~~made~~ in an aggregate principal amount of less than (x) $5,000,000, in the case of the Revolving Facility and the Tranche A Term Facility or (y) $1,000,000, in the case of the Tranche B Term Facility and the Incremental Term Facility or (ii) cause the Assignor to have Aggregate Exposure of less than (x) $3,000,000, in the case of the Revolving Facility and the Tranche A Term Facility or (y) $1,000,000, in the case of the Tranche B Term Facility and the Incremental Term Facility, in the case of either clause (i) or (ii), unless otherwise agreed by the Borrower and the Administrative Agent; provided further that, except in the case of an assignment of all of a Lender's interests under this Agreement, no such assignment to an Intracreditor Assignee shall (i) be in an aggregate principal amount of less than $250,000 or (ii) cause the Assignor to have Aggregate Exposure of less than $250,000, in each case unless otherwise agreed by the Borrower and the Administrative Agent. For purposes of clauses (i) and (ii) of the preceding sentence, the amounts described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Any such ~~transfer~~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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Tranche A Incremental Term Commitment or a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such ~~transfer together with~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any ~~prior transfers~~provision of this Section 10.6, ~~would trigger registration requirements under~~ the ~~Exchange Act~~consent of the Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. On the effective date of any Assignment and Acceptance, the Administrative Agent shall give notice of the terms thereof to the Syndication Agent. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The ~~Issuer or~~ Administrative Agent shall, on behalf of the Borrower, maintain at its ~~agent will maintain~~ address referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Tranche A Incremental Term Commitment and the Revolving Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, each other Loan Party, the 84 79 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 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 (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 Acceptance, and thereupon one or more new Notes shall be issued to the designated Assignee. The ~~Issuer shall refuse to register any transfer of any Note in violation~~ Administrative Agent will promptly send a copy of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost Register to the ~~Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder~~ Borrower upon ~~such Noteholder’s reasonable~~ request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 10.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$3,500, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 10.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any ~~Note~~ Loan to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered~~ applicable law or including, in the case of any Lender that is an investment fund, any pledge or assignment of all or any portion of such Lender's rights under ~~the United States Securities Act~~ this Agreement to any holders of ~~1933~~obligations owed, or securities issued, by such Lender as ~~amended (the “Securities Act”)~~security for such obligations or securities, or to any trustee for, or any ~~state securities laws~~other representative of, ~~and, accordingly, may not be offered~~ such holders; provided that no such pledge or ~~sold except~~ assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as ~~set forth in the following sentence. The Notes were originally issued in~~ a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilityparty hereto. (g) ~~Subject to Section 8.1~~Each of Holdings, ~~if there is more than one Noteholder pursuant to Section 8.6(b)~~the Borrower, ~~any (i) waiver, amendment, modification, supplement, restatement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other revision to this Agreement or~~ join any other ~~Secured Note Document~~ Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or ~~(ii)~~ liquidation proceeding under any ~~advice~~state bankruptcy or similar law, ~~consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by~~ for one year and one day after the ~~Noteholders,~~ payment in ~~the case of each of clauses (i) and (ii) shall require the consent or approval~~ full of the ~~majority~~ 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 expense arising out of ~~Noteholders (by Outstanding Principal as~~ its inability to institute such a proceeding against such Conduit Lender during such period of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentforbearance. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Charter Communications Holdings Capital Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Term Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement or any other Loan Document without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender (and any attempted such assignment or transfer ~~by the Issuer~~ without such ~~consent~~ consents shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, a "Participant") participating interests in any Term Loan owing to such Lender or any other interest of such Lender hereunder and under 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 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 and each Lender shall retain the sole right to enforce any Loan Document and approve any amendment, modification or waiver of any provision of the Loan Documents, except that a selling Lender may agree that, without the Participant's consent, such selling Lender will not agree to any amendment, waiver or consent to any provisions of the Loan Documents to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Term Loans or any fees payable hereunder, release all or substantially all of the Collateral, release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Term Loans, in each case to the extent subject to such participation. 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 9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 with respect to its participation in the Term Loan Commitments and the Term Loans outstanding from time to time as if it were a Lender; provided that, in the case of Section 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. (c) Any Lender (an "Assignor") may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Approved Fund or Control Investment Affiliate thereof or, with the consent of the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower or the Administrative Agent is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~together with any related~~ unless (i) otherwise agreed by the Borrower and the Administrative Agent or (ii) such assignment is one of two or more assignments being made simultaneously to affiliated Assignees, the sum of the aggregate principal amounts of which is at least $1,000,000. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Term Loan Commitment and/or Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 2.14, 2.15, 2.17 and 9.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective 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. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 9.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Term Loan Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Term Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 the Term Loans recorded therein for all purposes of this Agreement. Any assignment of any Term Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Term Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Term Loan, accompanied by a duly executed Assignment and 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 ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ 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 Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 9.6(c), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is more than one Noteholder, the Issuer~~ a registration and processing fee of $3,500 (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to Xxxxxx Commercial Paper Inc. or any Affiliate thereof or (z) in the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders, the Administrative Agent and the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the applicable Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the applicable Term Loans acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and Acceptance and, if the Assignor has retained Term Loans, upon request, a new Note to the order of the Assignor in an amount equal to the applicable Term Loans retained by it hereunder. Such new Note or Notes shall ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERAmendment/Restatement Effective Date and shall otherwise be in the form of the Note replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Term Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Term Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Term Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Term Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Term Loan, the Granting Lender shall be obligated to make such Term Loan pursuant to the terms hereof and (iii) the Granting Lender's and the Borrower's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, the Granting Lender shall remain solely responsible for the performance thereof, and the Borrower, the Lenders and the Agents shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender's rights and obligations under this Agreement and the other Loan Documents. The making of a Term Loan by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~8.6(b~~9.6(g), any SPC may (iA) ~~waiver~~with notice to, ~~amendment~~but without the prior written consent of, ~~modification~~the Borrower and the Administrative Agent and without paying any processing fee therefor, ~~supplement~~assign all or a portion of its interests in any Term Loans to the Granting Lender, ~~restatement~~ or ~~other revision~~ with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to ~~this Agreement~~ any financial institutions providing liquidity and/or credit support to or ~~any other Secured Note Document~~ for the account of such SPC to support the funding or ~~(ii) any advice~~maintenance of Term Loans, ~~consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i)~~ and (iiB) ~~shall require the consent~~ disclose on a confidential basis any non-public information relating to its Term Loans to any rating agency, commercial paper dealer or ~~approval~~ provider of ~~the majority of Noteholders (by Outstanding Principal as of the date of~~ any surety, guarantee or credit or liquidity enhancement to such ~~determination)~~SPC; provided that non-public information with respect to the ~~unanimous~~ Borrower may be disclosed only with the Borrower's consent which will not be unreasonably withheld. In the event that the consent of all ~~Noteholders~~ or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Term Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Term Loan shall agree between themselves as to which of them shall be ~~required~~ entitled to grant or withhold any consent applicable to such Term Loan, but such Granting Lender shall communicate with ~~respect~~ the Administrative Agent and the Borrower as to ~~any~~ the giving or withholding of such ~~waiver~~consent, ~~amendment, modification, supplement, restatement or other revision~~ and the parties to ~~this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer~~ the Loan Documents shall be ~~deemed~~ entitled to ~~have satisfied its obligation~~ rely conclusively on the advice by such Granting Lender as to ~~provide~~ whether such consent is being granted or withheld. This paragraph (g) may not be amended without the written consent of any ~~Noteholder (other than~~ SPC with Term Loans outstanding at the ~~Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making~~ time of such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerproposed amendment.

Appears in 1 contract

Samples: Term Loan Agreement (B&g Foods Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Issuer~~its commercial banking business and in accordance with applicable law, ~~assign or transfer~~ at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks or other financial institutions (~~each, an “Assignee”~~"PARTICIPANTS") ~~all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time~~ participating interests in any Loan owing to ~~it) pursuant to an Assignment~~ such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and ~~Assumption or similar agreement which includes an agreement by~~ under the ~~assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~other Loan Documents PROVIDED, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in ~~no event may~~ the case of any ~~transfer of a Note be made if~~ such ~~transfer~~sale to an additional bank or financial institution, ~~or such transfer together with any prior transfers, would trigger registration requirements under~~ (x) the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the aggregate principal amount of the ~~Notes~~ Loan (or prior to the Closing Date, Commitment) being sold is not less than $5,000,000 (or such lesser amount as may be agreed to by the Agent) and ~~stated interest thereon~~(y) ~~held~~ the aggregate principal amount of the Loan (or prior to the Closing Date, the Commitment) remaining with the selling Lender is not less than $5,000,000 (or such lesser amount as may be agreed to by ~~each Noteholder and each Assignee from time to time~~the Agent). ~~The entries in~~ In the ~~Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer~~ event of any ~~Note in violation~~ such sale by a Lender of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations a participating interest to a ~~Permitted Transferee (a “~~Participant~~”) in all or a portion of~~ , such ~~Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s~~ Lender's obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided~~the other Loan Documents. No Lender shall be entitled to create in favor of any Participant, ~~further, that~~ in ~~no event may any~~ the participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which ~~a Noteholder sells~~ such ~~a participation~~ Participant's participating interest shall ~~provide that such Noteholder shall retain the sole~~ be created or otherwise, any right to ~~enforce this Agreement and~~ vote on, consent to or approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision matter relating to this Agreement or any other ~~Secured Note~~ Loan Document except for those specified in clauses (i) and (ii) of the proviso to subsection 10. 1. The Borrower agrees that ~~is a UST Non-Binding Amendment. Subject~~ if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the ~~terms~~ maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this ~~Section 8.6(c)~~Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the ~~Issuer~~ Lenders the proceeds thereof as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~subsections 3.16, 3.17 and ~~2.13~~ 3.18 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; PROVIDED that, in the case of subsection 3.17, such Participant shall have complied with the requirements of said subsection and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided~~PROVIDED, FURTHER, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ subsection than the ~~Noteholder~~ Lenders would have been entitled to receive in respect of the amount of the participation transferred by such Lender to such Participant had no such transfer ~~occurred unless~~ occurred. (c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Borrower and the Agent (which in each case shall not be unreasonably withheld), to an additional bank or financial institution (an "ASSIGNEE") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of EXHIBIT G, executed by such ~~transfer occurs while~~ Assignee, such assigning Lender (and, in the case of an ~~Event~~ Assignee that is not then a Lender or an affiliate thereof, by the Borrower and the Agent) and delivered to the Agent for its acceptance and recording, PROVIDED that, in the case of ~~Default~~ any such assignment to an additional bank or financial institution, (x) the aggregate principal amount of the Commitment being assigned is not less than $5,000,000 (or such lesser amount as may be agreed to by the Borrower and the Agent) and (y) if such assignment is of less than all of the rights and obligations of the assigning Lender, the aggregate principal amount of the Commitment remaining with the assigning Lender is not less than $5,000,000 (or such lesser amount as may be agreed to by the Borrower and the Agent). Upon such execution, delivery, acceptance and recording (and the payment of the registration and processing fee described in clause (e) below), from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall ~~have occurred and~~ be ~~continuing. To~~ a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and ~~subject~~ (y) the assigning Lender thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of the Lenders' rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) of this subsection, the consent of the Borrower shall not be required for any assignment which occurs at any time when any of the events described in subsection 8(g) shall have occurred and be continuing. (d) The Agent, on behalf of ~~Issuer~~the Borrower, shall maintain at the address of the Agent referred to in subsection 10.3 a copy of each Assignment and Acceptance delivered to it and a register ~~on which it enters~~ (the ~~name~~"REGISTER") for the recordation of the names and addresses of the Lenders and the Commitments of, ~~address~~ and ~~interest~~ principal amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall, to the extent permitted by applicable law be prima facie evidence of the existence and amounts therein recorded. The Borrower, the Agent and the Lenders 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 owner thereof for all purposes of this Agreement ~~of all Participants~~and the other Loan Documents, notwithstanding any notice to the contrary. ~~Each Noteholder shall refuse to register any transfer~~ Any assignment of any ~~participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Loan or ~~the restrictions set forth~~ other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Note~~Register. If The Register shall be available for inspection by the Borrower or any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERLender at any reasonable time and from time to time upon reasonable prior notice. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender 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 Agent), together with payment to the Agent of a registration and processing fee of $2,500, the Agent shall (i) promptly accept such Assignment and 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; PROVIDED that no such fee shall be payable with respect to any assignment from an assigning Lender to an affiliate thereof. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lenders' 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 Lenders' 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 8.6~~ subsection 10.8 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Zaring National Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and any Notes hereunder and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ~~consent~~ ordinary course of its commercial banking or lending business and in accordance with applicable law and at no cost or expense to the ~~Issuer~~Borrower, ~~assign or transfer~~ at any time sell to one or more ~~assignees~~ banks or other entities ("PARTICIPANTS") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, (i) such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this Agreement and the other Loan Documents, (iv) the Borrower and the 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, and (v) in any proceeding under the Bankruptcy Code the Lender shall be, to the extent permitted by law, the sole representative with respect to the obligations held in the name of such Lender, whether for its own account or for the account of any Participant. No Lender shall be entitled to create in favor of any Participant, in the participation agreement pursuant to which such Participant's participating interest shall be created or otherwise, any right to vote on, consent to or approve any matter relating to this Agreement or any other Loan Document except for those specified in clauses (i) and (ii) of the proviso to subsection 11. 1. The Borrower agrees that is each Participant shall be entitled to the benefits of subsections 4.13 and 4.14 with respect to its participation in the Commitments and the Loans and Letters of Credit outstanding from time to time as if it was a ~~Permitted Transferee~~ Lender; PROVIDED that, in the case of subsection 4.13, such Participant shall have complied with the requirements of said subsection and PROVIDED, FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such 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. (~~each~~c) Any Lender may, in the ordinary course of its commercial banking or lending business and in accordance with applicable law, at any time and from time to time assign to any Lender or, with the prior consent of each Issuing Lender, any Affiliate thereof or, with the prior written consent of the Administrative Agent, the Borrower and each Issuing Lender (which in each case shall not be unreasonably withheld), to an ~~“Assignee”~~additional bank or financial institution or other entity (an "ASSIGNEE") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents including, without limitation, its Revolving Credit Commitments, L/C Commitments, Revolving Credit Loans and L/C Participating Interests, pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit G, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender, by the Borrower, the Administrative Agent and ~~such Noteholder~~ each Issuing Lender) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register, ~~together with~~ PROVIDED that (i) (unless the Borrower and the Administrative Agent otherwise consent in writing) no such transfer to an Assignee (other than a Lender or any ~~related~~ Affiliate thereof) shall be in an aggregate principal amount less than $10,000,000 in the aggregate (or, if less, the full amount of such assigning Lender's Revolving Credit Loans, L/C Participating Interests and Revolving Credit Commitments) and (ii) if any Lender assigns all or any part of its rights and obligations under this Agreement to one of its Affiliates in connection with or in contemplation of the sale or other disposition of its interest in such Affiliate, the Borrower's prior written consent shall be required for such assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and L/C Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with~~ such assigning Lender shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this paragraph (c) and paragraph (e) of this subsection, the consent of the ~~United States; provided that~~Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrower, for any assignment which occurs at any time when any of the events described in ~~no event may any transfer~~ subsection 9(f) shall have occurred and be continuing. (d) The Administrative Agent, on behalf of the Borrower, shall maintain at the address of the Administrative Agent referred to in subsection 11.2 a ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (~~“Register”~~the "REGISTER") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitments of, and principal ~~amount~~ amounts of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer~~ , and the Borrower, the Administrative Agent and the Lenders may (and, in the case of any ~~Note in violation of the foregoing restrictions~~Loan or other obligation hereunder not evidenced by a Note, ~~the restrictions set forth in Section 8.6(e~~shall) ~~or the restrictions set forth~~ treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured Note Documents as are reasonably required to accommodate~~ Loan Documents, notwithstanding any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost notice to the ~~Issuer~~ contrary. Any assignment of ~~maintaining~~ any Loan or other obligation hereunder not evidenced by a Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Notes~~Register. ~~If there is more than one Noteholder~~The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything in this Agreement to the contrary, no assignment under subsection 11.6(c) of any rights or obligations under or in respect of the Loans, the ~~Issuer~~ Notes or the Letters of Credit shall ~~provide all information~~ be effective unless and ~~documents delivered hereunder to~~ until the ~~Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an~~ Administrative Agent shall have recorded the assignment pursuant to ~~this Section 8.6(b~~subsection 11.6(d). Upon its receipt of an Assignment and Acceptance executed by an assigning Lender 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) ~~shall bear~~ together with payment to the ~~following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED~~ Administrative Agent of a registration and processing fee of $3,500 (~~THE “SECURITIES ACT”~~other than in the case of an assignment by a Lender to an affiliate of such Lender), ~~OR ANY STATE SECURITIES LAWS~~the Administrative Agent shall (i) promptly accept such Assignment and 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, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the ~~consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in~~ assigning Lender shall surrender any outstanding Notes held by it all or a portion of ~~such Noteholder’s rights~~ which are being assigned, and ~~obligations under this Agreement~~ the Borrower, at its own expense, shall, upon the request to the Administrative Agent by the assigning Lender or the Assignee, as applicable, execute and deliver to the Administrative Agent (~~including all or a portion~~ in exchange for the outstanding Notes of the ~~Notes owing~~ assigning Lender) a new Revolving Credit Note to ~~it); provided that~~ the order of such Assignee in an amount equal to the lesser of (A) the amount of such ~~Noteholder’s obligations under this Agreement shall remain unchanged,~~ Assignee's Revolving Credit Commitment and (B) the aggregate principal amount of all Revolving Credit Loans made by such ~~Noteholder shall remain solely responsible~~ Assignee, after giving effect to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment hereunder, a new Revolving Credit Note to the ~~other parties hereto for~~ order of the ~~performance~~ assigning Lender in an amount equal to the lesser of (A) the amount of such ~~obligations,~~ Lender's Revolving Credit Commitment and (CB) the ~~Issuer~~ aggregate principal amount of all Revolving Credit Loans made by such Lender, after giving effect to such Assignment and Acceptance. Any such new Notes shall ~~continue~~ be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. Any Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to ~~deal solely~~ the Borrower marked "canceled". (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "TRANSFEREE") and ~~directly with~~ any prospective Transferee, any and all financial information in such ~~Noteholder~~ Lender's possession concerning the Loan Parties and their 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 Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant~~ Loan Parties and their Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 8.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Meridian Resource Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Loan Parties, the Lenders, the Agent, all future ~~Noteholders~~ holders of the Notes and their respective successors and ~~assigns permitted hereby~~assigns, except that none of the ~~Issuer~~ Loan Parties may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided that (i) any such sale of participating interests must be in a minimum amount equal to the lesser of (A) $5,000,000 and (B) the aggregate Commitments of such Lender then in effect, and (ii) after giving effect to any such sale, such Lender must have either (x) retained at least $5,000,000 of Commitments not subject to any participating interests or (y) sold participating interests to Participants in all its Loans and Commitments. 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 Note for all purposes under this Agreement and the other Loan Documents, and the Parent, the Borrower and the 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. Each of the Parent and the Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall 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 or any Note; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Section 2.13, Section 2.14 and Section 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender; provided that, in the case of Section 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 Section 2.13, Section 2.14 and Section 2.15 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the ~~Issuer~~Borrower and the Agent (which in each case shall not be unreasonably withheld and, ~~assign~~ in the case of the Borrower shall not be required while any Default or ~~transfer~~ Event of Default shall have occurred and shall be continuing), to ~~one~~ an additional bank or ~~more assignees that is a Permitted Transferee~~ financial institution (~~each,~~ an “"Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the Notes ~~at the time owing to it)~~ pursuant to ~~an Assignment and Assumption or similar agreement which includes an agreement by~~ a Commitment Transfer Supplement, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit K, (a "Commitment Transfer Supplement") executed by such Assignee, such assigning Lender and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and ~~such Noteholder~~ the Agent and delivered to the ~~Issuer~~ Agent for its ~~records~~acceptance and recording in the Register; provided that (i) any such assignment must be in a minimum amount equal to the lesser of (x) $5,000,000 and (y) the aggregate Commitments and outstanding Loans of such Lender then in effect, ~~together with~~ and (ii) after giving effect to any ~~related~~ such assignment, such Lender shall have either (x) sold all its rights and obligations hereunder and under the Notes or (y) retained at least $5,000,000 of the aggregate Commitments. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Commitment Transfer Supplement, (1) the Assignee thereunder shall be a party hereto and, to the extent provided in such Commitment Transfer Supplement, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein and (2) the assigning Lender thereunder, to the extent provided in such Commitment Transfer Supplement, shall be released from its obligations under this Agreement (and, in ~~each case~~the case of a Commitment Transfer Supplement covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with any applicable securities laws of any state of the United States~~such assigning Lender shall cease to be a party hereto; provided ~~that~~that the provisions of Section 2.13, Section 2.14, Section 2.15 and Section 10.5 shall continue to benefit such assigning Lender to the extent required by such Sections). (d) The Agent shall maintain, at its address referred to in ~~no event may any transfer~~ Section 10.2, a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Commitment Transfer Supplement delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitments of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Parent, the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Parent, the Borrower or any Lender at any reasonable time and from time to ~~register any transfer~~ time upon reasonable prior notice. (e) Upon its receipt of ~~any~~ a Commitment Transfer Supplement executed by an assigning Lender 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 Agent) together with payment to the Agent of a registration and processing fee of $3,500, the Agent shall promptly accept such Commitment Transfer Supplement and, on the effective date determined pursuant thereto, shall record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective date, the Borrower, at its own expense, shall execute and deliver to the Agent (in exchange for the Note ~~in violation~~ of the ~~foregoing restrictions~~assigning Lender) a new Note, to the order of such Assignee, in an amount equal to the Commitment assumed by such Assignee pursuant to such Commitment Transfer Supplement and, if the assigning Lender has retained a Commitment, a new Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. (f) Each of the Parent and the Borrower authorizes each Lender to disclose, subject to the Section 10.8, to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, any and all financial information in such Lender's possession concerning the Parent, the ~~restrictions set forth in Section 8.6(e)~~ Borrower and any Subsidiaries which has been delivered to such Lender by or on behalf of the ~~restrictions set forth in~~ Parent, the ~~Note. The Issuer shall enter into such amendments~~ Borrower pursuant or ~~other modifications~~ any Subsidiary, as the case may be, to this Agreement ~~and~~ or which has been delivered to such Lender by or on behalf of the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one NoteholderParent, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrower in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note~~Parent, ~~would trigger registration requirements under~~ the ~~Exchange Act. Any agreement pursuant~~ Borrower and the Subsidiaries prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not Nothing herein shall prohibit ~~assignments creating security interests in Notes, including, without limitation,~~ any ~~pledge~~ Lender from pledging or ~~assignment by a Noteholder of~~ assigning any Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Oro Spanish Broadcasting Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Borrower, the ~~parties hereto~~Lenders, Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its respective rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder (~~Agent and each Lender and any attempted assignment or transfer by ~~the Issuer~~ Borrower without such consent shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~. (b) Any ~~Noteholder~~ Lender may, without the consent ~~of the Issuer~~of, ~~assign~~ or ~~transfer~~ notice to, Borrower or any other Person, in accordance with applicable law, at any time sell to one or more ~~assignees that is~~ banks, financial institutions or other entities (other than a ~~Permitted Transferee~~ Defaulting Lender and other than a Disqualified Lender) (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and Borrower and 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 9. 1. Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.8(a) as fully as if such Participant were a Lender hereunder. Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.10 and 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 2.11, such Participant shall have complied with the requirements of Section 2.10, and; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Commitments or the Loans or other obligations under this Agreement (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 participation for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version). (c) Any Lender and any Related Fund of any Lender (an “~~Assignee~~Assignor”) may assign to one or more banks, financial institutions, insurance companies or other entities other than a natural person or any Affiliate of any Loan Party (other than a Disqualified Lender) (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of ~~the Notes~~ Loans at the time owing to it) ~~pursuant to an Assignment and Assumption or similar agreement which includes an agreement by~~ with the ~~assignee thereunder~~ prior written consent (such consent not to be ~~bound by the terms~~ unreasonably withheld, conditioned or delayed) of Borrower (and ~~provisions of the Intercreditor Agreement, executed by~~ Borrower shall be deemed to have consented to any such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws assignment of any ~~state~~ Loans unless it shall have objected thereto by written notice to Agent within ten Business Days after having received notice thereof to a Responsible Officer of ~~the United States~~Borrower); ~~provided that, in~~ provided: (i) no ~~event may any transfer of a Note~~ such consent need be ~~made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer~~ obtained from Agent or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER.Affiliates; (cii) ~~Any Noteholder may, without~~ the consent of ~~the Issuer, sell participations~~ Borrower need not be obtained with respect to ~~a Permitted Transferee~~ any assignment of Loans at any time when any Event of Default shall have occurred and be continuing; and (~~a “Participant”~~iii) in no consent of Agent or Borrower shall be required for an assignment of all or a any portion of ~~such Noteholder’s~~ its rights and obligations under this Agreement (including all or a portion of Loans at the ~~Notes~~ time owing to it) to another Lender, an Affiliate of a Lender or any Related Fund; and (iv) no consent of Borrower shall be required for an assignment of all or a portion of the L/C Obligations under this Agreement (including all or a portion of the L/C Obligations owing to it). (d) Each assignment shall be made pursuant to an Assignment and Acceptance, substantially in the form of Exhibit I (an “Assignment and Acceptance”), executed by such Assignee and such Assignor and delivered to Agent for its acceptance and recording in the Register; provided that (Ai) no such ~~Noteholder~~assignment to an Assignee (other than any Lender, an Affiliate of a Lender or a Related Fund) shall be in an aggregate principal amount of less than $10,000,000 (other than, in each case, in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by Xxxxxxxx and Agent, and (ii) the Assignor or Assignee has paid to Agent a processing and recordation fee in the amount of $3,500.00 (which fee may be waived or reduced in the sole discretion of Agent) (provided only one such fee shall be payable in the case of concurrent assignments to Persons that, after giving effect to such assignments, will be Related Funds). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement ~~shall remain unchanged~~(and, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the ~~aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while~~ case of an ~~Event~~ Assignment and Acceptance covering all of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholderan Assignor’s rights and obligations under this Agreement, such ~~Noteholder~~Assignor shall cease to be a party hereto, except as to Sections 2.10, 2.11 and 9.5 in respect of the period prior to such effective date). For purposes of the minimum assignment amounts set forth in this Section 9.7(d), multiple assignments by two or more Related Funds shall be aggregated. 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 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 Borrower and Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to 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 Aggregate Exposure. 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. (e) Agent shall, on behalf of ~~Issuer~~Xxxxxxxx, maintain at its address referred to in Section 9.2 a copy of each Assignment and 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 (and stated interest) of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and Borrower, Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Note evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall ~~maintain a register on which it enters~~ be effective only upon appropriate entries with respect thereto being made in the ~~name, address~~ Register (and ~~interest in this Agreement~~ each Note shall expressly so provide). Any assignment or transfer of all ~~Participants. Each Noteholder~~ or part of a Loan evidenced by a Note shall ~~refuse to register any~~ be registered on the Register only upon surrender for registration of assignment or transfer of ~~any participation in violation of~~ the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance; thereupon one or ~~the restrictions set forth~~ more new Notes in the ~~Note~~same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by Agent to Borrower marked “canceled”. If The Register shall be available for inspection by Borrower or any Lender (with respect to any entry relating to such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSORXxxxxx’s Loans) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERat any reasonable time and from time to time upon reasonable prior notice. (df) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 9.7(c), by each such other Person), Agent shall (i) promptly accept such Assignment and 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 Borrower. On or prior to such effective date, Borrower, at its own expense, upon request, shall execute and deliver to Agent (in exchange for the applicable Note, if any, of the assigning Lender) a new Note or Notes to such Assignee in an amount equal to the Commitment or Loan assumed or acquired by it pursuant to such Assignment and Acceptance and, if the Assignor has retained a Commitment or Loan, as the case may be, upon request, a new Note or Notes to the Assignor in an amount equal to the Commitment or Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 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 ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentlaw. (h) ~~The Issuer~~ Notwithstanding anything to the contrary contained herein, no assignment shall be ~~deemed~~ permitted to ~~have satisfied its obligation to provide~~ any ~~Noteholder~~ Affiliate of any Loan Party. (~~other than~~ i) For the ~~Initial Noteholder~~avoidance of doubt, this Section 9.7 shall be construed so that the Loans, Commitments and participations are maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2), and 881(c)(2) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to of the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerCode.

Appears in 1 contract

Samples: Credit Agreement (Mach Natural Resources Lp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Arrangers, the Agents, the Managers, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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, the Arrangers, the Agents and the Managers 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an “Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided, that, in the case of Section 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. (c) Any Lender (an "Assignor") may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender, any Affiliate thereof or Affiliated Fund of the assigning Lender (provided, that if any funding obligations are assigned to an Affiliate of a Lender or Affiliated Fund, such Affiliate or Affiliated Fund, as applicable, shall have demonstrable resources to comply with such obligations) or of another Lender or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld, conditioned or delayed), to an additional bank, financial institution or other entity that is an Eligible Assignee (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an assignment and acceptance agreement, substantially in the form of Exhibit E hereto (an "Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance"), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided, ~~together~~ that no such assignment to an Assignee (other than any Lender or any Affiliate thereof or Affiliated Fund) shall be in an aggregate principal amount of less than $5,000,000 with ~~any related~~ respect to Revolving Credit Commitments or $1,000,000 with respect to Term Loan Commitments, 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section, the consent of the ~~United States; provided that~~Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 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 ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender's Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ 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 ~~Issuer, sell participations~~ Administrative Agent of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a Lender or is an Affiliate of a Lender or an Affiliated Fund or with respect to ~~a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion~~ the initial syndication of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cCommitments), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Revolving Credit Note and/or Term Note, as if the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Note, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or Term Loan Commitment, as the case may be, assumed or acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit Commitment and/or Term Loan Commitment, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the ~~terms of this Section 8.6(c)~~Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment and/or Term Loans or Term Loan Commitment, ~~each Participant also~~ as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ dated the ~~benefits of Section 8.7 as though it were~~ Closing Date and shall otherwise be in the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNotes replaced thereby. (df) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Wynn Las Vegas LLC)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, IntermediateCo, the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Term Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of ~~its~~ their rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable Law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) participating interests in ~~all or a portion~~ any Term Loan owing to such Lender, any Commitment of such ~~Noteholder~~Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds or (ii) a natural person. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s ~~rights and~~ obligations under this Agreement ~~(including all or a portion of~~ to the ~~Notes owing~~ other parties to ~~it); provided that (A) such Noteholder’s obligations under~~ this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Term Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 9. 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~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 2.14 as fully as if such Participant were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of ~~Section 2.12~~Sections 2.15, ~~and 2.13~~ 2.16 or 2.17 (subject to the ~~same extent~~ requirements and limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) through (i) (it being agreed that any required forms shall be provided solely to the participating Lender)) with respect to its participation in the Commitments and the Term Loans outstanding from time to time as if it such Participant were a ~~Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6~~Lender; ~~provided,~~ provided that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred, except to the extent that entitlement to a greater amount results from a Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer ~~occurs while~~ was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal and interest amounts of each Participant’s interest in the Term Loans 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 the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of a Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. (c) Any Lender (an “Assignor”) may, in accordance with applicable Law and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made by or to the Arranger) and, so long as no Event of Default ~~shall have~~ under Section 7.1(a) or (f) has occurred and is continuing, the Borrower (which shall not be ~~continuing. To the extent permitted by law~~unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made to or, in connection with the primary syndication of the Term Loan Facility, by, the Arranger) (provided that the Borrower shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof), at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, or 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 Acceptance executed by such Assignee and such Assignor and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be subject to the ~~terms~~ above described consents; provided, further, that no assignment to an Assignee (other than any Lender or any affiliate thereof) of ~~this Section 8.6(c), each Participant also~~ Term Loans shall be ~~entitled~~ in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Term Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall retain any Term Loans) shall have Term Loans aggregating at least $1,000,000 unless otherwise agreed by the Administrative Agent and the Borrower; provided, however, no Lender shall be permitted to assign all or any part of its rights and obligations under this Agreement to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) Holdings, the Borrower or any of their respective Subsidiaries or (iii) any natural person. Upon such execution, delivery, acceptance and recording in the Register, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the ~~benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent of the interest assigned in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such ~~Noteholder~~Assignor shall cease to be a party hereto, ~~on behalf of Issuer~~except as to Sections 2.16, ~~shall maintain a register on which it enters the name, address~~ 2.17 and ~~interest~~ 9.5 in ~~this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation~~ respect of the ~~foregoing restrictions,~~ period prior to such effective date). For purposes of the ~~restrictions~~ minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. Notwithstanding anything to the contrary herein, any assignment by Xxxxxx Xxxxxxx pursuant to this Section ~~8.6(e~~9.6 that would cause the aggregate principal amount of Term Loans held by Xxxxxx Xxxxxxx and its controlled Affiliates to be less than a majority of the aggregate principal amount of Term Loans held by all Lenders shall be subject, so long as no Event of Default under Section 7.1(a) or (f) has occurred and is continuing, to the ~~restrictions set forth in~~ consent of the ~~Note. If any such participation is in certificated form, it~~ Borrower (which shall ~~bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”~~not be unreasonably withheld or delayed), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) [Reserved]; (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (provided, however, that (i) Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) no such fee shall be required to be paid (A) in connection with an assignment by or to the Arranger or any Affiliate thereof or (B) in the case of an Assignee which is already a Lender or any affiliate, Related Fund or Control Investment Affiliate thereof), the Administrative Agent shall (1) promptly accept such Assignment and Acceptance and (2) 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 Term Loan Notes of the assigning Lender) a new Term Loan Note to such Assignee in an amount equal to the Term Loans assumed or acquired by it pursuant to such Assignment and Acceptance and, if the Assignor has retained Term Loans, upon request, a new Term Loan Note to the Assignor in an amount equal to the Term Loans retained by it hereunder. Such new Term Loan Note or Term Loan Notes shall be dated the Closing Date and shall otherwise be in the form of the Term Loan Note or Term Loan Notes replaced thereby. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 9.6 concerning assignments of Term Loans and Term Loan Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Term Loans and Term Loan Notes, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Term Loan or Term Loan Note to any Federal Reserve Bank in accordance with ~~Applicable~~ applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Term Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Term Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Term Loan, the Granting Lender shall ~~require~~ be obligated to make such Term Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Term Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and as if, such Term Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (~~by Outstanding Principal as~~ 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. Each party hereto also agrees that each SPC shall be entitled to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and limitations of such ~~determination~~Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) through (i) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its granted interest in the Commitments and the Term Loans outstanding from time to time as if such SPC were a Lender; provided that no SPC shall be entitled to receive any greater amount pursuant to any such Section than the ~~unanimous~~ Granting Lender would have been entitled to receive in respect of the amount of the interest granted by such Granting Lender to such SPC had no such grant occurred, except to the extent that entitlement to a greater amount results from a change in Law that occurs after such interest was granted, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). In addition, notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or a portion of its interests in any Term Loans to the Granting Lender, or with the prior written consent of ~~all Noteholders~~ the Borrower and the Administrative Agent (which consent shall not be ~~required~~ unreasonably withheld) and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Term Loans, and (B) disclose on a confidential basis any non-public information relating to its Term Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower or its Affiliates may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This Section 9.6(g) may not be amended without the written consent of any SPC with Term Loans outstanding at the time of such ~~waiver,~~ proposed amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to . To the extent ~~such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website~~an SPC provides a Term Loan, the ~~Issuer~~ applicable Lender may ~~take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration,~~ maintain a ~~confidentiality agreement, evidence~~ register on behalf of ~~ownership~~ the Borrower and ~~acceptance of a disclaimer~~the SPC’s interest must be entered in the register.

Appears in 1 contract

Samples: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, in the ordinary course of its business, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 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 the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the 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 principal of, or interest on, the Loans or any fees or other amounts payable hereunder or extend or increase any Commitment hereunder, in each case to 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 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits and subject to the obligations of Sections 2.13, 2.14 and 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 or Assignee under Section 9.6(c); provided that, in the case of Section 2.14, 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 Sections 2.17 and 2.18 as if it were an Assignee under Section 9.6(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. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the 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 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 of a Lender or, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit D, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower or the Administrative Agent is required pursuant to the foregoing provisions, by the Borrower and the Administrative Agent) and delivered to the ~~Issuer~~ Administrative Agent via an electronic settlement system acceptable to the Administrative Agent or, if previously agreed with the Administrative Agent, manually, for its ~~records,~~ acceptance and recording in the Register together with a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent) and, if the Assignee shall not be a Lender, deliver to the Administrative Agent an administrative questionnaire and all applicable tax forms; provided that with respect to assignments of Commitments, no such assignment to an Assignee (other than any ~~related~~ Lender or any Affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $2,500,000 and increments of $1,000,000 in excess thereof (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 provided further that (i) from the Closing Date, no such consent of the Borrower to assignments shall be required, and (ii) no consent of the Borrower shall be required to a Permitted Assignee (and the Administrative Agent shall notify the Borrower of any assignment made pursuant to this clause (ii)). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 Section 2.13, 2.14 and 9.5, in ~~accordance~~ respect of the period prior to such effective 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. (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 ~~applicable securities laws~~ assignment of rights and obligations of any ~~state~~ Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the ~~United States; provided that~~Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans. Notwithstanding the foregoing, in no the event ~~may~~ that any ~~transfer~~ 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 ~~Note be made if~~ Defaulting Lender for all purposes of this Agreement until such ~~transfer~~compliance occurs. (g) The Administrative Agent shall, ~~or such transfer together with any prior transfers~~on behalf of the Borrower, ~~would trigger registration requirements under the Exchange Act. The Issuer or~~ maintain at its ~~agent will maintain~~ address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (and each Note shall expressly so provide). The ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender’s Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ch) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ in any case where the consent of any other Person is required by Section 9.6(c), by each such other Person) together with payment by the ~~Issuer~~applicable Assignor or Assignee to the Administrative Agent of a registration and processing fee of $3,500, ~~sell participations~~ if applicable, an Administrative Questionnaire completed in respect of the Assignee (unless the Assignee shall already be a Lender hereunder) and any applicable tax forms, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register. The Borrower, at its own expense, promptly upon receipt of a request by the Administrative Agent, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a ~~Permitted Transferee (a “Participant”) in all or a portion~~ new Note to the order of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible Assignee in an amount equal to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, Commitment assumed or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law~~Assignor has retained a Commitment, ~~and subject~~ upon request, a new Note to the ~~terms~~ order of ~~this Section 8.6(c), each Participant also~~ the Assignor in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ dated the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation effective date of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth~~ relevant assignment and shall otherwise be in the ~~Note. If any such participation is in certificated form, it shall bear~~ form of the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNote or Notes replaced thereby. (di) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (ej) ~~The Notes have not been registered under~~ Notwithstanding anything to the ~~United States Securities Act of 1933~~contrary contained herein, ~~as amended~~ any Lender (~~the~~ a “~~Securities Act~~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 ~~state securities laws, and, accordingly, may not~~ part of any Loan that such Granting Lender would otherwise be ~~offered or sold except as set forth in~~ obligated to make to the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder Borrower pursuant to ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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 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 ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to ~~any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall~~ the Borrower may be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict disclosed only with the ~~terms~~ Borrower’s consent which will not be unreasonably withheld. This paragraph (f) may not be amended without the written consent of ~~this Agreement or Applicable Law. In connection~~ any SPC with ~~providing access to~~ Loans outstanding at the ~~Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access~~ time of such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~proposed amendment.

Appears in 1 contract

Samples: Senior Bridge Credit Agreement (Northwestern Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, the Lenders, the Issuing Banks, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ a Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement (except in a transaction permitted by subsection 7.5) without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Note held by such Lender, any Revolving Credit Commitment or L/C Commitment of such Lender or any other interest of such Lender hereunder and under 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 Note for all purposes under this Agreement and the other Loan Documents, and the Borrowers and the 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; provided that such Lender shall reserve solely unto itself, and shall not grant to any Participant, any part or all of its right to agree to the amendment, modification or waiver of any of the terms of this Agreement or other Loan Document or any document related thereto, except for any such amendment, modification or waiver that would reduce the principal of, or interest on the Loans, participating interests in the Letters of Credit or any fees payable hereunder, in each case subject to such participation, or postpone the date of the final maturity of, or any scheduled date fixed for payment of interest on, the Loans or any Reimbursement Obligation, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement or any Note, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in subsection 10.7 (a) as fully as if it were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of subsections 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 it were a Lender; provided that, in the case of subsection 2.18, such Participant shall have complied with the requirements of said subsection as if it were a Lender, except with respect to the furnishing of forms, documentation and certifications, in which case such Participant shall have complied with the requirements of subsection 2.18(b), and provided, further, except in a case of a Participant that becomes a Participant pursuant to the Intercreditor Risk-Sharing Agreement, that no Participant shall be entitled to receive any greater amount pursuant to any such 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. (c) Any Lender may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate thereof or to an Approved Fund, or, with the consent of the ~~Issuer~~Company, ~~assign~~ the Issuing Banks (in the case of assignments under the Revolving Credit Commitments) and the Administrative Agent (which in each case shall not be unreasonably withheld), to an additional bank, fund (as long as such fund invests in bank loans) or ~~transfer to one or more assignees that is a Permitted Transferee~~ other financial institution (~~each,~~ an “"Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit C, executed by such Assignee (an "Assignment and Acceptance"), such ~~Noteholder~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof or an Approved Fund, by the Company, the Issuing Banks (in the case of assignments under the Revolving Credit Commitments) and the Administrative Agent) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register. Any such assignment by any Lender to any Person which is not then a Lender or an Affiliate thereof or an Approved Fund shall be in a minimum aggregate amount equal to at least $5,000,000 (or, ~~together with any related~~ if less, all of a Lender's interest under this Agreement), unless otherwise agreed by the Company and the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with~~ such assigning Lender shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this subsection to the contrary, the consent of the ~~United States; provided that,~~ Company to an assignment shall not be required at any time when an Event of Default under paragraphs (a) or (m) of subsection 8.1 shall have occurred and be continuing. (d) The Administrative Agent shall maintain at its address referred to in ~~no event may any transfer~~ subsection 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders may 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 (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 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 relevant Borrower marked "cancelled". The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by either Borrower or any Lender at any reasonable time and from time to ~~register any transfer~~ time upon reasonable prior notice. (e) Upon its receipt of ~~any Note~~ an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in ~~violation~~ the case of an Assignee that is not then a Lender or an Affiliate thereof or an Approved Fund, by the ~~foregoing restrictions~~Company, the ~~restrictions set forth in Section 8.6(e) or the restrictions set forth~~ Issuing Banks (in the ~~Note. The Issuer shall enter into such amendments or other modifications to this Agreement~~ case of assignments under the Revolving Credit Commitments) and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost Administrative Agent) together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is more than one Noteholder, the Issuer~~ a registration and processing fee of $3,500 (which fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) not be payable in connection with an assignment by a Lender to an Affiliate thereof or pursuant to the Intercreditor Risk-Sharing Agreement), the Administrative Agent shall (i) promptly accept such Assignment and 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 Borrowers. On or prior to such effective date, each such Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Notes of the assigning Lender) new Notes to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, new Notes to the order of the 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 Notes shall be dated the Effective Date and shall otherwise be in the form of the Notes replaced thereby. (f) Each Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the provisions of subsection 10.15, any and all financial information in such Lender's possession concerning the Borrowers and their Affiliates which has been delivered to such Lender by or on behalf of the Borrowers pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent Agreement or which has been delivered to such Lender by or on behalf of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrowers in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant~~ Borrowers and their Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 8.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Gentek Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Arrangers, the Agents, the Managers, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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, the Arrangers, the Agents and the Managers 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an “Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided, that, in the case of Section 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. (c) Any Lender (an "Assignor") may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender, any Affiliate of the assigning Lender or of another Lender or any Affiliated Fund of the assigning Lender or of another Lender (provided, that if any funding obligations are assigned to such an Affiliate or such an Affiliated Fund, such Affiliate or Affiliated Fund, as applicable, shall have demonstrable resources to comply with such obligations) or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in the case of the Borrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld, conditioned or delayed), to an additional bank, financial institution or other entity that is an Eligible Assignee (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an assignment and acceptance agreement, in the form of Exhibit E hereto (an "Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance"), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided, ~~together~~ that no such assignment to an Assignee (other than any Lender or any Affiliate of the assigning Lender or of another Lender or Affiliated Fund of the assigning Lender or of another Lender) shall be in an aggregate principal amount of less than $5,000,000 with respect to Revolving Credit Commitments or $1,000,000 with respect to Term Loan Commitments, unless otherwise agreed by the Borrower and the Administrative Agent (provided, that for purposes of the foregoing limitations only, any ~~related~~ two or more funds that concurrently invest in Loans and are managed by the same investment advisor, or investment advisors that are Affiliates of one another, shall be treated as a single 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section, the consent of the ~~United States; provided that~~Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 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 ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender's Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ 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 ~~Issuer, sell participations to~~ Administrative Agent of a ~~Permitted Transferee~~ registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a ~~“Participant”) in all~~ Lender or ~~a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion~~ is an Affiliate of the ~~Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible~~ assigning Lender or of another Lender or an Affiliated Fund of the assigning Lender or of another Lender or with respect to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers initial syndication of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cCommitments), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Revolving Credit Note and/or Term Note, as if the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Note, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or Term Loan Commitment, as the case may be, assumed or acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit Commitment and/or Term Loan Commitment, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the ~~terms of this Section 8.6(c)~~Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment and/or Term Loans or Term Loan Commitment, ~~each Participant also~~ as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ dated the ~~benefits of Section 8.7 as though it were~~ Closing Date and shall otherwise be in the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNotes replaced thereby. (df) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Wynn Resorts LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement ~~shall~~ will be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, with the consent of the Administrative Agent (but without the consent of the ~~Issuer~~Borrower), ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 each such participation will be in a minimum amount of $5,000,000. 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 will remain unchanged, such Lender will remain solely responsible for the performance thereof, such Lender will remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Administrative Agent will 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 will any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Obligor therefrom, except to the extent that such amendment, waiver or consent would (x) reduce the principal of, or interest on, the Loans or any reimbursement Obligations or Acceptance Obligations or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation, (y) release all or any substantial portion of the Collateral, or release any Subsidiary Guarantor from its guaranty of any of the Obligations, except strictly in accordance with the terms of the Loan Documents, or (z) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement. 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 will, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant will be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.8(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant will be entitled to the benefits of Sections 3.4, 3.5 and 3.6 with respect to its participation in the Commitments, Loans, Letters of Credit and Acceptances outstanding from time to time as if it was a Lender; provided, however, that, in the case of Section 3.5, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant will be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (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, with the consent of the Borrower and the Administrative Agent (which, in each case, will not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this clause (c), and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided, ~~together with any related~~ however, if such assignment is in respect of less than all of the rights and obligations of the Assignor, the sum of the aggregate principal amount of the Loans and/or the aggregate amount of the Letter of Credit Outstandings and/or the aggregate amount of the Acceptance Obligations and/or the aggregate principal amount of the unused Commitments (A) being assigned by such Assignor shall be $5,000,000 or more unless the Assignor is transferring all of its rights and obligations and (B) remaining with the Assignor shall not be less than $5,000,000 unless the Assignor is transferring all of its rights and obligations or unless otherwise agreed by 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 Acceptance, (x) the Assignee thereunder will be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder will, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor will cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section 10.7, the consent of the ~~United States; provided that~~Borrower will not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. (d) The Administrative Agent will, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register ~~shall~~ will be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, each other Obligor, the Administrative Agent and the Lenders will treat each Person whose name is recorded in the Register as the owner of the Loans and any Revolving Notes evidencing the Loans recorded therein for all purposes of this Agreement. ~~The Issuer shall refuse to register~~ Any assignment of any Loan, whether or not evidenced by a Revolving Note, will be effective only upon appropriate entries with respect thereto being made in the Register (and each Revolving Note will expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Revolving Note ~~in violation~~ will be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Revolving Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost more new Revolving Notes will be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by clause (c~~) Any Noteholder may~~), without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$3,500, the ~~Issuer agrees that each Participant shall be entitled to~~ Administrative Agent will (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 10.7 concerning assignments of Loans and Revolving Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Revolving Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Revolving Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Revolving Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in clause (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (General Bearing Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement or any other Loan Document without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender (and any attempted such assignment or transfer ~~by the Issuer~~ without such ~~consent~~ consents shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, without the consent of of, or notice to, the ~~Issuer~~Borrower, ~~assign~~ any Agent, the Issuing Lender or ~~transfer~~ any Lender, in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other Persons (other than natural Persons) (each, an a “~~Assignee~~Participant”) participations in all or a any portion of ~~its~~ such Lender’s rights ~~and~~ and/or obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other ~~Secured Note~~ Loan Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a any portion of the ~~Notes~~ Commitments and Loans owing to itsuch Lender); provided that (Ai) such ~~Noteholder~~Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged, (Bii) such ~~Noteholder~~ Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (Ciii) the ~~Issuer~~ Borrower, the Agents, the Issuing Lender and the Lenders shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided~~the other Loan Documents. For the avoidance of doubt, ~~further, that in no event may any participation in a Note~~ each Lender shall be ~~made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of~~ responsible for the ~~Note, would trigger registration requirements~~ indemnity under the ~~Exchange Act~~last paragraph of Section 9.5 with respect to any payments made by such Lender to its Participant(s). Any agreement or instrument pursuant to which a ~~Noteholder~~ Lender sells such a participation shall provide that such ~~Noteholder~~ Lender shall retain the sole right to enforce ~~this Agreement~~ the obligations of the Borrower relating to the Loans or Reimbursement Obligations and to approve any amendment, modification or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any Loan Party therefrom; provided that such agreement or instrument may provide that such ~~Noteholder~~ Lender will not, without the consent of the applicable Participant, agree to any ~~waiver,~~ amendment, modification, ~~supplement, restatement~~ waiver or ~~other revision~~ consent to ~~this Agreement or~~ any ~~other Secured Note Document that is a UST Non-Binding Amendment. Subject~~ provisions of the Loan Documents to the ~~terms~~ extent that such amendment, modification, waiver or consent would forgive, waive or excuse the principal amount or extend the final scheduled date of ~~this Section 8.6(c)~~maturity of any Loan or Reimbursement Obligation, or reduce the ~~Issuer~~ stated rate of any interest (other than the waiver of default interest) or fee payable hereunder, release all or substantially all of the Collateral or release all or substantially all of the value of the Subsidiary Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, in each case to the extent subject to, or related to, such participation. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (subject to the requirements and limitations set forth therein, including the requirements under Section ~~2.12, and 2.13~~ 2.18(e) (it being understood that the documentation under Section 2.18(e) shall be delivered to the participating Lender)) to the same extent as if it were a ~~Noteholder~~ Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section ~~8.6; provided, that the Noteholders~~ 2.21 as if it were an assignee under paragraph (b) of this Section and ~~all Participants~~ (B) shall not be entitled to receive no any greater ~~amount in the aggregate pursuant~~ payment under Sections 2.17, 2.18 or 2.19, with respect to ~~such Sections~~ any participation, than ~~the Noteholder~~ its participating Lender would have been entitled to ~~receive had no~~ receive, unless the sale of the participation to such ~~transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing~~Participant is made with the Borrower’s prior written consent. To the extent permitted by law~~, and subject to the terms of this Section 8.6(c)~~, each Participant also shall be entitled to the benefits of Section ~~8.7~~ 9.7 as though it were ~~the Noteholder~~a Lender; provided that such Participant agrees to be subject to Section 2.16 as though it were a Lender. ~~In the event~~ Each Lender that ~~a Noteholder~~ sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain at one or more of its offices 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 Loans or other rights or obligations under the Loan Documents (each such register, a “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Loans or other rights or obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Loan or other right or obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations provided that if any Participant requests compensation under Section 2.17, 2.18 and 2.19, such Participant shall provide to the Borrower and the Administrative Agent any documentation reasonably requested by the Borrower or the Administrative Agent. The entries in a Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. (c) Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.6, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of Information or other information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 9.14. (d) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Person (other than a natural person and, except as expressly permitted under Section 9.6(i), other than to the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (an “Assignee”), with the consent of the Issuing Lender, the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld or delayed), all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, executed by such Assignee and such Assignor (and, where the consent of the Borrower or any other Person is required pursuant to the foregoing provisions, by the Borrower and each such other Person) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such consent of the Issuing Lender need be obtained with respect to any assignment of the Term Loans and (ii) no such consent of the Borrower (A) shall be required (x) if such assignment is made to another Lender or any Affiliate or Approved Fund or Control Investment Affiliate thereof, (y) after the occurrence and during the continuance of an Event of Default or (z) in the case of assignments during the primary syndication of the Commitments and Loans, to Persons identified by the Administrative Agent to the Borrower prior to the Closing Date, and (B) shall be deemed to have been given if the Borrower has not responded within five Business Days of a request for such consent; provided, further, that no such assignment to an Assignee (other than any Lender or any Affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $2,500,000 with respect to Revolving Credit Loans or Revolving Credit Commitments and $1,000,000 with respect to Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless (i) otherwise agreed by the Borrower and the Administrative Agent or (ii) such assignment is one of two or more assignments being made simultaneously by or to affiliated Assignees or Approved Funds, the sum of the aggregate principal amounts of which is at least $2,500,000 with respect to Revolving Credit Loans or Revolving Credit Commitments and $1,000,000 with respect to Term Loans. 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 ~~Noteholder~~Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans and other interests as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, 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 ~~Noteholder~~Assignor shall cease to be a party hereto except as to Sections 2.17, ~~on behalf~~ 2.18, 2.20 and 9.5 in respect of ~~Issuer~~the period prior to such effective date). Notwithstanding anything to the contrary contained herein, no such assignment shall ~~maintain~~ be made (1) to the Borrower or any of the Borrower’s Subsidiaries or Affiliates except as expressly permitted under Section 9.6(i) or (2) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a ~~register on which it enters the name~~Lender hereunder, ~~address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register~~ would constitute any ~~transfer of any participation in violation~~ of the foregoing ~~restrictions, the restrictions set forth~~ Persons described in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), this clause (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The ~~Notes have not been registered under~~ Administrative Agent shall, solely for this purpose acting as an agent of the ~~United States Securities Act~~ Borrower, maintain at its address referred to in Section 9.2 a copy of ~~1933, as amended~~ each Assignment and Assumption delivered to it and a register (the “~~Securities Act~~Register”)) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, ~~or any state securities laws~~and principal amount and stated interest of the Revolving Extensions of Credit and Term Loans owing to, ~~and, accordingly, may not be offered or sold except as set forth~~ each Lender from time to time. The entries in the ~~following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may~~ Register shall be ~~offered~~conclusive, ~~sold or otherwise transferred~~ in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Revolving Extensions of Credit, Term Loans and any Notes evidencing 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 (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 ~~registration~~ Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or ~~an applicable exemption therefrom~~more new Notes in the same aggregate principal amount shall be issued to the designated Assignee (to the extent requested by such designated Assignee), and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Revolving Extensions of Credit and Term Loans) at any reasonable time and from time to time upon reasonable prior notice. (f) ~~Notwithstanding~~ 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 ~~8.6(a~~9.6(d), ~~8.6(b~~by each such other Person), ~~8.6(c~~together with payment to the Administrative Agent of a registration and processing fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent) and ~~8.6(e)~~an Administrative Questionnaire completed in respect of the Assignee (unless the Assignee shall already be a Lender hereunder) and all applicable tax forms, 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 Notes of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if ~~at any time~~ the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, new 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 ~~(as defined~~ shall be dated the Closing Date and shall otherwise be in the ~~UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then~~ form of the Note ~~will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the~~ or Notes ~~under the UST Facility~~replaced thereby. (g) ~~Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b),~~ Any Lender may at any ~~(i) waiver, amendment, modification, supplement, restatement~~ time pledge or ~~other revision to this Agreement~~ assign a security interest in all or any ~~other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined~~ portion of its rights under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date to secure obligations of such ~~determination)~~Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that ~~the unanimous consent~~ no such pledge or assignment shall release such Lender from any of ~~all Noteholders shall be required with respect to~~ its obligations hereunder or substitute any such ~~waiver, amendment, modification, supplement, restatement~~ pledgee or ~~other revision to this Agreement or any other Secured Note Document that is~~ assignee for such Lender as a ~~UST Non-Binding Amendment~~party hereto. (h) ~~The Issuer~~ 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, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be ~~deemed~~ obligated to ~~have satisfied its obligation~~ make such Loan pursuant to ~~provide any Noteholder~~ the terms hereof and (~~other than~~ iii) the ~~Initial Noteholder) with any report, notice, financial statement or other information required to be provided~~ Granting Lender’s and the Borrower’s obligations under this Agreement ~~or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website~~ to the ~~extent such action does not conflict with the terms of~~ other parties to this Agreement ~~or Applicable Law. In~~ shall remain unchanged, the Granting Lender shall remain solely responsible for the performance thereof, and the Borrower, the Lenders and the Agents shall continue to deal solely and directly with such Granting Lender in connection with ~~providing access~~ such Granting Lender’s rights and obligations under this Agreement and the other Loan Documents. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the ~~Issuer’s internet website~~same extent, ~~the Issuer may take reasonable measures to ensure that only then current Noteholders may access~~ and as if, such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.~~Loan were made by such Granting

Appears in 1 contract

Samples: Credit Agreement (B&G Foods, Inc.)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Revolving Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or other entities (each, a "PARTICIPANT") participating interests in any Revolving Loan owing to such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Revolving Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the 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 is such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 9.1. The Borrower agrees that if amounts outstanding under this Agreement and the Revolving Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a ~~Permitted Transferee~~ Lender under this Agreement, PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.8 and 2.9 with respect to its participation in the Revolving Loans outstanding from time to time as if such Participant were a Lender; PROVIDED that, in the case of Section 2.9, such Participant shall have complied with the requirements of said Section, PROVIDED, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender (an "ASSIGNOR") may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Eligible Assignee or, with the consent of the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (each, an ~~“Assignee”~~"ASSIGNEE") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes~~ Acceptance, substantially in the form of Exhibit D (an ~~agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~"ASSIGNMENT AND ACCEPTANCE"), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Administrative Agent and the Borrower is required pursuant to the foregoing provisions, by the Administrative Agent and the Borrower) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; PROVIDED that no such assignment to an Assignee (other than any Lender or any Affiliate, ~~together with any related~~ Related Fund or Control Investment Affiliate thereof) shall be in an aggregate principal amount of less than $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. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Revolving Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 Section 2.8, 2.9 and 9.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective 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. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 9.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (~~“Register”~~the "REGISTER") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Revolving Loan Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Revolving Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Revolving Loans and any Revolving Notes evidencing such Revolving Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Revolving Loan, whether or not evidenced by a Revolving Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Revolving Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Revolving Loan evidenced by a Revolving Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Revolving Note evidencing such Revolving Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance; thereupon one or ~~the restrictions set forth~~ more new Revolving Notes in the ~~Note. The Issuer~~ same aggregate principal amount shall ~~enter into such amendments or other modifications~~ be issued to ~~this Agreement~~ the designated Assignee, and the ~~other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for~~ old Revolving Notes shall be returned by the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost Administrative Agent to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERBorrower marked "canceled". (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ in any case where the consent of any other Person is required by Section 9.6(c), by each such other Person) together with payment to the ~~Issuer~~Administrative Agent of a registration and processing fee of $3,500 (treating multiple, ~~sell participations~~ simultaneous assignments by or to two or more Related Funds as a ~~Permitted Transferee~~ single assignment) (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a ~~“Participant”) in all~~ Lender or is an affiliate or Related Fund of a Lender or a ~~portion of such Noteholder’s rights and obligations~~ Person under ~~this Agreement (including all or~~ common management with a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cLender), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent as if~~ Administrative Agent (in exchange for the Revolving Note of the assigning Lender) a new Revolving Note to the order of such Assignee in an amount equal to the applicable Revolving Loans, assumed or acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled~~ Assignor has retained Revolving Loans, upon request, a new Revolving Note to ~~receive had no such transfer occurred unless such transfer occurs while~~ the order of the Assignor in an ~~Event of Default~~ amount equal to the applicable Revolving Loans, as the case may be, retained by it hereunder. Such new Revolving Note or Revolving Notes shall ~~have occurred and~~ be ~~continuing. To~~ dated the ~~extent permitted by law~~Closing Date or Funding Date, as applicable, and ~~subject to~~ shall otherwise be in the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Revolving Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERRevolving Notes replaced thereby. (df) ~~For avoidance of doubt, the~~ The parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Revolving Loans and Revolving Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Revolving Loans and Revolving Notes, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Revolving Loan or Revolving Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Revolving Credit Agreement (National Coal Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Revolving Borrower, the Revolving Lenders, the Revolving Administrative Agent, all future ~~Noteholders~~ holders of the Revolving Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Revolving Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Revolving Lender and (~~and~~ ii) any attempted assignment or transfer by the ~~Issuer~~ Revolving Borrower without such consent shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~. (b) Any ~~Noteholder~~ Revolving Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Revolving Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is~~ banks, financial institutions or other entities (other than the Revolving Borrower or any of its Affiliates or a ~~Permitted Transferee~~ natural Person) (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) participating interests in ~~all or a portion~~ any Revolving Loan owing to such Revolving Lender, the Revolving Commitment of such ~~Noteholder~~Revolving Lender or any other interest of such Revolving Lender hereunder and under the other Revolving Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Revolving Lender’s ~~rights and~~ obligations under this Agreement ~~(including all or a portion of~~ to the ~~Notes owing~~ other parties to ~~it); provided that (A) such Noteholder’s obligations under~~ this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Revolving Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Revolving Lender shall remain the holder of any such ~~obligations~~Revolving Loan for all purposes under this Agreement and the other Revolving Loan Documents, ~~(C)~~ and the ~~Issuer~~ Revolving Borrower and the Revolving Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Revolving Lender in connection with such ~~Noteholder~~Revolving Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Revolving Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of any Revolving Loan Document, or any consent to any departure by any Revolving Loan Party therefrom, except any amendment, waiver or consent described in clause (i) of the proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. The Revolving Borrower agrees that if amounts outstanding under this Agreement and the Revolving Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Revolving Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Revolving Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 8.7 as fully as if it were a ~~UST Non-Binding Amendment~~Revolving Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Revolving Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.13, 2.14 and ~~2.13~~ 2.15 (and subject to the ~~same extent~~ limitations thereof) with respect to its participation in the Revolving Commitments and the Revolving Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Revolving Lender; provided that, in the case of Section 2.14, such Participant shall have complied with the requirements of Section 2.14 (including the requirements under Section 2.14(f) and ~~had acquired its interest by assignment pursuant~~ Section 2.14(g) (it being understood that the documentation required under Section 2.14(f) and Section 2.14(g) shall be delivered to ~~paragraph (b~~the participating Revolving Lender)) ~~of this Section 8.6;~~ as if it was a Revolving Lender, and provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to ~~such~~ Sections 2.13, 2.14 or 2.15 (as the case may be) than the ~~Noteholder~~ transferor Revolving Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Revolving Lender to such Participant had no such transfer ~~occurred unless~~ occurred, except to the extent such ~~transfer~~ entitlement to receive a greater payment results from a Change in Law made subsequent to the date hereof that occurs ~~while~~ after the Participant acquired the applicable participation. Each Revolving Lender that sells a participation shall, acting as a non-fiduciary agent on behalf of the Revolving Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Revolving Loans or other obligations under this Agreement (the “Participant Register”); provided that no Revolving Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Revolving Commitments or Revolving Loans or its other obligations under any Revolving Loan Document) except to the extent that such disclosure is necessary to establish that such Revolving Commitment, or Revolving 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, in the absence of manifest error, and such Revolving Lender, each Revolving Loan Party and the Revolving Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. (c) Any Revolving 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 Person (other than the Revolving Borrower or any of its Affiliates) (an “Assignee”) all or any part of its rights and obligations under this Agreement, the other Revolving Loan Documents and the Pre-Export Credit Agreement pursuant to an Assignment and Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Revolving Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Revolving Borrower and the Revolving Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and in the case of the Revolving Borrower shall be deemed to have been given if the Revolving Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of (x) any assignment to a Person that is not a Revolving Lender or a Revolving Lender Affiliate or (y) any assignment of a Revolving Commitment to a Person that is not a Revolving Lender or a Revolving Lender Affiliate (except that the consent of the Revolving Borrower shall not be required for any assignment that occurs when either a Default or an Event of Default shall have occurred and be continuing), (ii) unless otherwise agreed by the Revolving Borrower and the Revolving Administrative Agent, no such assignment to an Assignee (other than any Revolving Lender or any Revolving Lender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Revolving Lender’s interests under this Agreement and (iii) any such assignment to an Assignee will include a corresponding assignment of the Assignor’s rights and obligations under the Framework Agreement and the Pre-Export Credit Agreement. To For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Revolving Lender and its Revolving Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (w) the Assignee thereunder shall be a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and ~~subject~~ obligations of a Revolving Lender hereunder with a Revolving Commitment and/or Revolving Loans as set forth therein, (x) the Assignee thereunder shall become and be deemed a party to the ~~terms of this Section 8.6(c)~~Framework Agreement and a “Revolving Lender” and “Pre-Export Lender” thereunder for all purposes thereof and, ~~each Participant also shall be entitled~~ to the ~~benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and Acceptance, shall enjoy all rights and assume all of the obligations of the Assignor as a Revolving Lender and a Pre-Export Lender set forth in the Framework Agreement, (y) the Assignee thereunder shall become and be deemed a party to the Pre-Export Credit Agreement and a “Pre-Export Lender” thereunder for all purposes thereof and, to the extent provided in such Assignment and Acceptance, shall enjoy all rights and assume all of the obligations of the Assignee as a Pre-Export Lender set forth in the Pre-Export Credit Agreement and (z) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement, the Framework Agreement and the Pre-Export Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such ~~Noteholder~~Assignor shall cease to be a party hereto and under the Framework Agreement and the Pre-Export Credit Agreement). Notwithstanding the foregoing, ~~on behalf of Issuer, shall maintain a register on which it enters~~ any Conduit Lender may assign at any time to its designating Revolving Lender hereunder without the ~~name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation~~ consent of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Revolving Borrower or the ~~restrictions~~ Revolving Administrative Agent any or all of the Revolving Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”first sentence of this Section 8.6(c), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) The Revolving Administrative Agent, acting as a non-fiduciary agent of the Revolving Borrower solely for tax purposes, shall maintain at its address referred to in Section 8.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Revolving Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Revolving Loans owing to, each Revolving Lender from time to time, which Register shall be made available to the Revolving Borrower and any Revolving Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the Revolving Borrower, each other Revolving Loan Party, the Revolving Administrative Agent and the Revolving Lenders shall treat each Person whose name is recorded in the Register as the owner of the Revolving Loans and any Notes evidencing the Revolving Loans recorded therein for all purposes of this Agreement. Any assignment of any Revolving Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Revolving Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Revolving Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the designated Assignee. (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 8.6(c), together with payment to the Revolving Administrative Agent of a registration and processing fee of $3,500 (such fee not to be payable by the Revolving Borrower, except for an assignment pursuant to Section 2.18), the Revolving 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. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Revolving Lender to any Federal Reserve Bank or any other central bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Revolving Borrower, upon receipt of written notice from the relevant Revolving Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Revolving Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Each of the ~~Initial Noteholder) with any report~~Revolving Borrower, ~~notice, financial statement~~ each Revolving Lender and the Revolving Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; provided, ~~notice~~however, ~~financial statement~~ that each Revolving Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or ~~other information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 1 contract

Samples: Revolving Credit Agreement (Bunge LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, ~~all future Noteholders~~ the Lenders, the Administrative Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that none of the ~~Issuer~~ Borrowers may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder (~~each Lender and any ~~attempted~~ assignment or transfer by ~~the Issuer without such consent~~ any Lender of its rights or obligations under this Agreement or any Loan Document must be made in compliance with this Section 11.6 (and any purported assignment in violation of this Section shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrowers or the Administrative Agent, ~~assign or transfer~~ at any time sell to one or more ~~assignees~~ financial institutions or other entities ("Loan Participants") participating ------------------- interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Loan Participant, (i) such Lender's obligation under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan or other interest for all purposes under this Agreement and the other Loan Documents, (iv) the Borrowers and the 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, and (v) no Loan Participant under any participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by the Borrowers therefrom, except with respect to the matters described in clauses (i) and (ii) of the proviso to the second sentence of Section 11.1. The Borrowers agree that, while an Event of Default shall have occurred and be continuing if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Loan Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of set off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this 77 Agreement; provided, that, in purchasing such participating interest, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrowers also agree that is each Loan Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a ~~Permitted Transferee~~ Lender, provided that, in the case of Section 2.15 such Loan Participant shall have complied with the requirements of said Section and provided, further, that no Loan Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in connection with the same event or circumstance in respect of the amount of the participation transferred by such transferor Lender to such Loan Participant had no such transfer occurred. (~~each~~c) Any Lender may at any time and from time to time assign, with the consent of the Administrative Agent in the case of an “assignment other than to another Lender or an Affiliate thereof (which in each case shall not be unreasonably withheld), to any other Lender or to a Registered Entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this -------- Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement,~~ Exhibit F executed by such ---------- Assignee, such assigning Lender and in the case of an Assignee ~~and such Noteholder~~ that is not then a Lender or an Affiliate thereof, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register. Upon such execution, ~~together with any related~~ delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (i) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (ii) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with any applicable securities laws of any state~~ such assigning Lender shall cease to be a party hereto except as to Sections 2.14, 2.15 and 8.5). (d) The Administrative Agent, on behalf of the ~~United States; provided that~~Borrowers, shall maintain at the address of the Administrative Agent referred to in ~~no event may any transfer~~ Section 11.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of -------- the ~~Noteholders and Assignees~~ Lenders and the Commitments of, and principal ~~amount~~ amounts of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer of any Note in violation of~~ , and the ~~foregoing restrictions~~Borrowers, the ~~restrictions set forth in Section 8.6(e) or~~ Administrative Agent and the ~~restrictions set forth~~ Lenders shall treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured Note Documents as are reasonably required to accommodate~~ Loan Documents, notwithstanding any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost notice to the ~~Issuer~~ contrary. Any assignment of ~~maintaining~~ any 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 ~~Notes~~Register. ~~If there~~ The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is ~~more than one Noteholder~~not then a Lender or an affiliate thereof, the ~~Issuer shall provide all information and documents delivered hereunder to~~ Administrative Agent) together with, except in the ~~Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with~~ case of an assignment pursuant to Section 2.18, 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) 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 Borrowers. No assignment shall be effective for purposes of this ~~Section 8.6(b) shall bear~~ Agreement unless it has been recorded in the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERRegister as provided in this clause. (cf) ~~Any Noteholder may~~The Borrowers authorize each Lender to disclose to any Loan Participant or Assignee (each, ~~without~~ a "Transferee") and any prospective ---------- Transferee, subject to the ~~consent~~ provisions of Section 11.15, any and all financial information in such Lender's possession concerning the Borrowers and their Affiliates which has been delivered to such Lender by or on behalf of the ~~Issuer, sell participations~~ Borrowers pursuant to ~~a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under~~ this Agreement ~~(including all~~ or ~~a portion~~ which has been delivered to such Lender by or on behalf of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrowers in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant~~ Borrowers and their Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dg) ~~For avoidance of doubt, the~~ The parties to this Agreement acknowledge that the provisions of this ~~Section 8.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933~~applicable law, ~~as amended (the “Securities Act”)~~provided that no such assignment, ~~or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ whether to a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement Federal Reserve Bank or other ~~revision to this Agreement~~ entity, shall release a Lender from any of its obligations hereunder or substitute any ~~other Secured Note Document or (ii) any advice, consent, vote, action, direction~~ such Federal Reserve Bank or other ~~matter~~ entity for such Lender as a party hereto or permit an absolute assignment to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (occur other than ~~the Initial Noteholder)~~ in accordance with ~~any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making~~ such ~~report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms~~ provisions of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimersubsection.

Appears in 1 contract

Samples: Credit Agreement (Telscape International Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, ~~all future Noteholders~~ the Lenders, the Agents and their respective successors and ~~assigns permitted hereby~~assigns, except as otherwise provided in Section 8.4, that ~~the Issuer~~ no Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (and any ~~attempted~~ purported such assignment or transfer by ~~the Issuer~~ such Borrower without such consent of each Lender shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, ~~without the consent of the Issuer~~in accordance with applicable Law, ~~assign or transfer~~ at any time sell to one or more ~~assignees that is~~ banks, financial institutions or other entities (individually, a ~~Permitted Transferee (each~~“Participant” and, an collectively, the “~~Assignee~~Participants”) ~~all~~ participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents (a ~~portion~~ “Participation”). In the event of ~~its rights and~~ any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan, ~~(C)~~ Reimbursement Obligation or other interest for all purposes under this Agreement and the ~~Issuer~~ other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided~~the other Loan Documents, ~~further~~except with respect to Sections 4.10 and 4.11, ~~that in~~ under which the Participant has certain rights with respect thereto. In no event ~~may~~ shall any ~~participation in a Note be made if~~ Participant under any such ~~indirect transfer, or such indirect transfer together with~~ Participation have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment to or waiver of any provision of ~~this Agreement; provided~~ any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such ~~agreement may provide that such Noteholder will not~~amendment, ~~without~~ waiver or consent would reduce the ~~consent~~ principal of, or the stated rate of interest on, the Loans, Reimbursement Obligation or any fees payable hereunder, or postpone the date of the ~~Participant~~final maturity of the Loans or Reimbursement Obligations, ~~agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject~~ in each case to the ~~terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same~~ extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant subject to such ~~Sections than~~ Participation (and, for the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the ~~parties~~ Borrowers may exercise any rights granted to ~~this Agreement acknowledge~~ it in Section 4.17 with respect to the Lender that sold a Participation to such Participant to the extent that the direction by such Participant to such Lender to not consent to any such amendment would cause the applicable Lender to be subject to the provisions of ~~this~~ Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.4.17

Appears in 1 contract

Samples: Credit Agreement

Successors and Assigns; Participations and Assignments. (ai) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Administrative Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (~~and any attempted~~ except as permitted pursuant to Section 10.3(a)). No sale, assignment or transfer by or participation of any Letter of Credit or any participation therein may be made separately from a sale, assignment, transfer or participation of a corresponding interest in the ~~Issuer without~~ Revolving Loan Commitment and the Revolving Loans of the Lender effecting such ~~consent shall be null~~ sale, assignment, transfer or participation. (ii) Any Lender may, in the ordinary course of its business and ~~void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except~~ in accordance with applicable law, at any time sell to one or more Persons (other than a natural Person) (“Participants”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Credit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible to the other parties hereto for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Credit Documents, and the Borrower and the 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 Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment, modification or waiver of any provision of any Credit Document, or any consent to any departure by any Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the stated rate, or forgive any portion, or postpone the date for the payment, of any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitments of any Lender, or postpone the date of the final scheduled maturity of any Loan or release all or substantially all the Collateral under the Pledge Agreement or release all or substantially all of the Guarantors under the Guaranty, in each case to the extent subject to such participation, and any agreement or instrument pursuant to which such participation is sold or transferred shall expressly provide for the provisions of this sentence. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~8.6~~13.8 as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.10 and 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender, provided that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (biii) Any ~~Noteholder~~ Lender may, ~~without~~ in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Eligible Assignee that is a Lender or any Affiliate or any Approved Fund thereof (with the consent of the ~~Issuer~~Borrower if any increased costs would result therefrom) or, ~~assign~~ with the consent of the Borrower and the Administrative Agent (which in each case shall not be unreasonably withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or ~~transfer~~ make any filing or registration with, any Governmental Authority), to ~~one~~ an Eligible Assignee (other than any Lender or ~~more assignees~~ Affiliate or Approved Fund thereof) that is ~~a Permitted Transferee~~ regularly engaged in making, purchasing or investing in loans or securities or financial institution (~~each,~~ an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Credit Documents pursuant to an Assignment and Assumption Agreement, substantially in the form of Exhibit G (the “Assignment and Assumption”), executed (either manually in the case of delivery per clause (x) below, or ~~similar agreement which includes~~ electronically in the case of delivery per clause (y) below) by such Assignee, such assigning Lender (and, in the case of an ~~agreement~~ Assignee that is not then a Lender, an Affiliate or an Approved Fund thereof, by the ~~assignee thereunder to be bound by~~ Borrower and the ~~terms~~ Administrative Agent) and ~~provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and~~ either (x) manually delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register or (y) electronically delivered to the Administrative Agent via an electronic settlement system acceptable to the Administrative Agent (the “Electronic Settlement System”), ~~together with~~ provided that, (i) except in the case of an assignment of all of a Lender’s interests under this Agreement and except for assignments to any ~~related~~ Lender or any Affiliate or Approved Fund thereof, unless otherwise agreed to by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender, any Affiliate or any Approved Fund thereof) shall be in an aggregate principal amount of less than $1,000,000, (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 Commitment so assigned and (iii) any assignment of Revolving Credit Loans or a Revolving Credit Commitment hereunder shall require the prior written consent of the Administrative Agent and the Letter of Credit Issuer. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption (and upon delivery of such other information reasonably requested by the Administrative Agent including, without limitation, such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters and with respect to such information requested under the Patriot Act as such assignee may otherwise be required to deliver pursuant to Section 5.4(b)) (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 a Commitment as set forth therein and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Assumption covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto); provided that notwithstanding anything contained in any of the Credit Documents to the contrary, if such Lender is a Letter of Credit Issuer such Lender shall continue to have all rights and obligations of a Letter of Credit Issuer until the cancellation or expiration of any Letters of Credit issued by it and the reimbursement of any amounts drawn thereunder. The assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender any promissory notes it holds that represent Loans to the Administrative Agent for cancellation, and thereupon new promissory notes, if so requested by the Assignee, substantially in the form of Exhibit D-1 or D-2, as the case may be, evidencing the Term Loans and Revolving Credit Loans, respectively, owing to such Assignee. Notwithstanding any provision of this Agreement to the contrary, the consent of the Borrower shall not be required for any assignment that occurs at any time when any of the events described in Section 11.1 or Section 11.5 shall have occurred and be continuing with respect to the Borrower. (b) Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Loans to any Federal Reserve Bank in accordance with ~~any~~ applicable ~~securities laws~~ law provided, that (i) no Lender shall be relieved of any ~~state~~ of its obligations hereunder as a result of any such assignment or pledge and (ii) in no event shall any assignee or pledge be considered to be a “Lender” or entitled to require the assigning Lender to take or omit to take any action hereunder. In order to facilitate such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time to time after the Borrower has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower’s own expense, a promissory note, substantially in the form of Exhibit D-1 or D-2, as the case may be, evidencing the Term Loans and Revolving Credit Loans, respectively, owing to such Lender. (c) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (a “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 senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United ~~States; provided that~~States or any State thereof or the District of Columbia. In addition, notwithstanding anything to the contrary contained in ~~no event~~ this 13.6 any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any ~~transfer~~ processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any Eligible Assignees (consented to by the Borrower and Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a ~~Note be made if~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~transfer~~SPC. (d) The Administrative Agent, ~~or such transfer together with any prior transfers~~on behalf of the Borrower, ~~would trigger registration requirements under~~ shall maintain at the ~~Exchange Act. The Issuer or its agent will maintain~~ address of the Administrative Agent referred to in Section 13.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer of any Note in violation of~~ , and the ~~foregoing restrictions~~Borrower, the ~~restrictions set forth in Section 8.6(e) or~~ Administrative Agent and the ~~restrictions set forth~~ Lenders shall treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured Note Documents as are reasonably required to accommodate~~ Credit Documents, notwithstanding any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost notice to the ~~Issuer~~ contrary. Any assignment of ~~maintaining~~ any Loan or other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable requestRegister. The ~~Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b)~~ Register shall ~~bear~~ be available for inspection by the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement Borrower or any ~~other Secured Note Document that is a UST Non-Binding Amendment. Subject~~ Lender at any reasonable time and from time to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Lawtime upon reasonable prior notice. (e) ~~The Notes have~~ Upon its receipt of an Assignment and Assumption executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not ~~been registered under~~ then a Lender, an Affiliate or an Approved Fund thereof, by the ~~United States Securities Act~~ Borrower and the Administrative Agent) together with payment to the Administrative Agent of ~~1933~~a registration and processing fee of $3,500, 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 Lenders and the Borrower; provided however, that no such fee shall be payable if the Assignment and Assumption is delivered via the Electronic Settlement System; and provided further that, in the case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (and, to the extent such Lender is a fund, which funds are not managed by the same investment advisor as ~~amended (the “Securities Act”~~such Lender or by an Affiliate of such investment advisor), ~~or any state securities laws, and, accordingly, may not~~ only a single $3,500 such fee shall be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of payable for all such ~~registration or an applicable exemption therefrom~~contemporaneous assignments. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section ~~8.1~~13.16, ~~if there is more than one Noteholder~~ the Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s possession concerning the Borrower and its Affiliates that has been delivered to such Lender by or on behalf of the Borrower pursuant ~~to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision~~ to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement, provided that neither the Administrative Agent nor any ~~other Secured Note Document~~ Lender shall provide to any Transferee or ~~(ii)~~ prospective Transferee any ~~advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this~~ of the Confidential Information unless such person shall have previously executed a Confidentiality Agreement ~~or any other Secured Note Document by the Noteholders,~~ in the ~~case~~ form of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.Exhibit J.

Appears in 1 contract

Samples: Credit Agreement (Bristol West Holdings Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrowers may not assign or ~~otherwise~~ transfer any of ~~its~~ their rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of ~~the Issuer~~any Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 Borrowers and the 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The 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 fully as if it were a Lender hereunder. The Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (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 Approved Fund or, with the consent of the Borrowers and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or any part of its rights and obligations -------- under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund) shall be in an aggregate principal amount of less than $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 Parent Borrower, the Subsidiary Borrower and the Administrative Agent. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the consent of the Borrowers shall not be required for any assignment that occurs when an Event of Default pursuant to Section 8(f) shall have occurred and be continuing with respect to the Borrowers. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrowers 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 Section 10.6(c). (d) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Lender") may grant to a special purpose funding vehicle (a "SPC"), --------------- --- identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrowers, the option to provide to the Borrowers all or any part of any advance that such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any advance and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such advance, the Granting Lender shall be obligated to make such advance pursuant to the terms hereof. The making of an advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such advance were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 10.6, any SPC may (i) with notice to, but without the prior written consent of, the Borrowers and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its ~~rights~~ interests in any advances to the Granting Lender or to any financial institutions (consented to by the Borrowers and ~~obligations under this Agreement~~ Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of advances and (~~including~~ ii) disclose on a confidential basis any non-public information relating to its advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This section may not be amended without the written consent of all ~~or a portion~~ such SPCs. (e) The Administrative Agent shall, on behalf of the ~~Notes~~ Borrowers, maintain at ~~the time owing~~ its address referred to ~~it) pursuant to an~~ in Section 10.2 a copy of each Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and Acceptance delivered to ~~the Issuer for its records, together with any related rights~~ it and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“the "Register”") for the recordation of the ~~Noteholders and Assignees. The Register shall contain the~~ names -------- and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (cf) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 10.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$4,000, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 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 Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentlaw. (h) The ~~Issuer shall be deemed~~ Borrowers, upon receipt of written notice from the relevant Lender, agree to ~~have satisfied its obligation~~ issue Notes to ~~provide~~ any ~~Noteholder~~ Lender requiring Notes to facilitate transactions of the type described in paragraph (~~other than~~ g) above. (i) Each of the ~~Initial Noteholder) with any report~~Borrowers, ~~notice, financial statement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; provided, ~~notice~~however, ~~financial statement~~ -------- 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 1 contract

Samples: Credit Agreement (Act Manufacturing Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an ~~“Assignee”~~Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.07(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender; PROVIDED that, in the case of Section 2.13, 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. (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, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "ASSIGNEE") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register (as defined below); PROVIDED that, ~~together with~~ unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any ~~related~~ Lender or any 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 an aggregate amount of at least $5,000,000 in each case described in 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, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. The Assignee shall purchase, at par, all Loans and pay all accrued interest and other amounts owing to such Assignor under this Agreement on or prior to the date of assignment for any assignment pursuant to Section 2.16. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section 9.06, the consent of the ~~United States; provided that~~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 to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in ~~no event may any transfer~~ the first sentence of this Section 9.06(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 9.02 a ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (~~“Register”~~the "REGISTER") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 9.06(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$4,000, the ~~Issuer agrees that each Participant~~ Administrative Agent 52 shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 9.06 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) The ~~Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Borrower, each Lender and the ~~Initial Noteholder) with any report, notice, financial statement~~ Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; PROVIDED, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 1 contract

Samples: 364 Day Credit Agreement (Fedex Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (~~and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder~~ except in ~~accordance with this~~ a transaction permitted by Section ~~8.6~~7.4). (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or the Administrative Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, a "Participant") participating interests in any Loan owing to such Lender, any Commitment of such Lender, the Tranche B-1 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 obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, 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 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an “Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.18, 2.19 and 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (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 Lender Affiliate or, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement pursuant to an Assignment and Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, 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, any affiliate of any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000 in the case of Revolving Commitments, $1,000,000 in the case of Tranche A Term Loans or $1,000,000 in the case of Tranche B-1 Credit Linked Deposit Amounts (provided that assignments made by any Lender on the same day to an Assignee and its affiliates (including any Lender Affiliates) and contemporaneous assignments by Lender Affiliates to a single Assignee may be treated as a single assignment for purposes of satisfying any such minimum assignment amount requirement (other than in the case of an assignment of all of a Lender's interests under the applicable Facility), (ii) after giving effect to any such assignment, such Lender and its affiliates (including any Lender Affiliates) shall retain Commitments, Term Loans and Tranche B-1 Credit Linked Deposit Amounts in an aggregate principal amount of $5,000,000 in the case of Revolving Commitments, $1,000,000 in the case of Tranche A Term Loans or $1,000,000 in the case of Tranche B-1 Credit Linked Deposit Amounts (other than in the case of an assignment of all of a Lender's interests under the applicable Facility), in each case unless otherwise agreed by the Borrower and the Administrative Agent, and (iii) no Lender may assign any interest in the Revolving Facility (other than, with the consent of the Administrative Agent, not to be unreasonably withheld or delayed, to an affiliate of such Lender or, to another Lender then holding Revolving Commitments) without the consent of the Administrative Agent, the Borrower, the Issuing Lender and the Swingline Lender (not to be unreasonably withheld or delayed). For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its related Lender Affiliates, if any (other than in the case of an assignment of all of a Lender's interests under this Agreement). Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be deemed a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Sections 8(a) or 8(f) shall have occurred and be continuing with respect to the Borrower. Without the consent of the Borrower and the Administrative Agent, the Tranche B-1 Credit Linked Deposit of any Tranche B-1 Lender shall not be released in connection with any assignment by such Tranche B-1 Lender, but shall instead be purchased by the relevant assignee and continue to be held for application (to the extent not already applied) in accordance with Section 2.4 to satisfy such assignee's obligations in respect of Tranche B-1 Exposure. Each Tranche B-1 Lender agrees that immediately prior to such assignment (x) the Administrative Agent shall establish a new Tranche B-1 Credit Linked Account in the name of such assignee, (y) unless otherwise consented to by the Administrative Agent, a corresponding portion of the amount on deposit in the Tranche B-1 Credit Linked Account of the assignor Tranche B-1 Lender shall be purchased by the assignee and shall be transferred from the assignor's Tranche B-1 Credit Linked Account to the assignee's Tranche B-1 Credit Linked Account and (z) if after giving effect to such assignment the aggregate amount of the Tranche B-1 Credit Linked Deposit Account of the assignor Tranche B-1 Lender shall be $0, the Administrative Agent shall close the Tranche B-1 Credit Linked Account of such assignor Tranche B-1 Lender. (d) Notwithstanding anything to the contrary contained herein, any Lender which is a bank (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan which such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided, that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Bank shall 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 Bank to the same extent, and as if, such Loan were made by such Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation hereunder (all liability for which shall remain with the Granting Bank). In furtherance of the foregoing, each party hereto agrees (which agreement shall survive termination of this Agreement) that in the event of any such grant by a Granting Bank to an SPC of the option to provide to the Borrower all or any part of its Loan, (i) such Granting Bank's obligations under this Agreement to the other parties to this Agreement shall remain unchanged and such Granting Bank shall remain solely responsible for the performance of such obligations under this Agreement and the other Loan Documents, (ii) such Granting Bank shall remain the holder of such Loan for all purposes under this Agreement and the other Loan Documents and nothing contained in this Section 10.6(d) is intended to excuse the Granting Bank from the full performance of its obligations hereunder and thereunder or otherwise diminish the duties and liabilities of the Granting Bank under this Agreement or the other Loan Documents (other than it being understood that any payment obligation on the part of such Granting Bank to make a Loan hereunder shall, if such Loan is made by any SPC, be deemed to have been satisfied upon the making of such Loan by such SPC), (iii) the Borrower and the Administrative Agent shall continue to deal solely and directly with such Granting Bank in connection with such Granting Bank's rights and obligations under this Agreement and the other Loan Documents, (iv) in no event shall any SPC have any 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, or be included in any determination of the Required Lenders or the Majority Facility Lenders hereunder for any purpose, (v) prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior Indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 10.6(d), any SPC may (X) with notice to, but without prior written consent of, the Borrower and the Administrative Agent (subject, however, to the approval of the financial institution as set forth below), assign all or a portion of its interests in any Loan to the ~~Notes~~ Granting Bank or to a financial institution (previously approved in writing by the Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of the Loans and (Y) subject to Section 10.15 hereof, disclose on a confidential basis any non-public information relating to its Loans to any rating agency as specifically provided for in Section 10.15 hereof. This Section 10.6 may not be amended without the prior written consent of the SPC, the Borrower and the Administrative Agent. (e) The Administrative Agent shall, on behalf of the Borrower, maintain at ~~the time owing~~ its address referred to ~~it) pursuant to an~~ in Section 10.2 a copy of each Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and Acceptance delivered to ~~the Issuer for its records, together with any related rights~~ it and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (~~Loans owing to and ~~stated interest thereon) held by~~ the amount of the Tranche B-1 Credit Linked Deposit Amount of, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of ~~such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a)~~manifest error, ~~8.6(b)~~and the Borrower, ~~8.6(c)~~ each other Loan Party, the Administrative Agent and ~~8.6(e), if at any time~~ the ~~Notes (as defined~~ Lenders shall treat each Person whose name is recorded in the ~~UST Facility) are~~ Register as the owner of the Loans and any Notes evidencing the Loans recorded therein and the Tranche B-1 Credit Linked Deposits Accounts for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note or Tranche B-1 Credit Linked Deposit Amount, shall be effective only upon appropriate entries with respect thereto being made in the 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 ~~under~~ on the ~~Securities Act~~ Register only upon surrender for registration of assignment or ~~exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then~~ transfer of the Note ~~will be entitled to demand~~evidencing such Loan, ~~shelf~~accompanied by a duly executed Assignment and Acceptance, and ~~piggyback registration rights no less favorable than those of the~~ thereupon one or more new Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be ~~required with respect~~ issued to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.the

Appears in 1 contract

Samples: Credit Agreement (Tenneco Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, in the ordinary course of its business, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 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 the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the 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 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. 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 also agrees that each Participant shall be entitled to the benefits and subject to the obligations of Sections 2.15, 2.16 and 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 or Assignee under Section 10.6(c); provided that, in the case of Section 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. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the 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 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 of a Lender or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lenders (which, in each case, shall not be unreasonably withheld or delayed) (provided that no consent from the applicable parties need be obtained by any Bank of America Entity in its capacity as Assignor (other than, solely in the case of any assignment of Revolving Credit Commitments, the consent of the Issuing Lender and the Swing Line Lenders (which, in each case, shall not be unreasonably withheld or delayed)), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit D, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent, the Issuing Lender or the Swing Line Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that with respect to assignments of Revolving Credit Commitments, ~~together with~~ no such assignment to an Assignee (other than any ~~related~~ Lender or any Affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement) and, after giving effect thereto, such Assignor shall have Revolving Credit Commitments and Revolving Credit Loans aggregating at least $5,000,000 (if holding any), unless otherwise agreed by the Borrower and the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and 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 Section 2.15, 2.16 and 10.5 in respect of the period prior to such effective 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. (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 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 and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each ~~case~~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 Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any ~~applicable securities laws~~ assignment of rights and obligations of any ~~state~~ 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 shall, on behalf of the ~~United States; provided that~~Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (and each Note shall expressly so provide). The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (h) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of~~ other Person is required by Section 10.6(c), by each such other Person) together with payment by the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ applicable Assignor or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost Assignee to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is~~ a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more ~~than one Noteholder, the Issuer~~ Related Funds as a single assignment) (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to a Bank of America 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), the Administrative Agent shall (i) promptly accept such Assignment and 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. The Borrower, at its own expense, promptly upon receipt of a request by the Administrative Agent, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note of the assigning Lender) a new Revolving Credit Note to the order of such Assignee in an amount equal to the Revolving Credit Commitment assumed or acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment, upon request, a new Revolving Credit Note to the order of the Assignor in an amount equal to the Revolving Credit Commitment retained by it hereunder. Such new Note or Notes shall ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUEReffective date of the relevant assignment and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (di) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (ej) ~~The Notes have not been registered under~~ Notwithstanding anything to the ~~United States Securities Act of 1933~~contrary contained herein, ~~as amended~~ any Lender (~~the~~ a “~~Securities Act~~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 ~~state securities laws, and, accordingly, may not~~ part of any Loan that such Granting Lender would otherwise be ~~offered or sold except as set forth in~~ obligated to make to the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder Borrower pursuant to ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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 ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to ~~any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall~~ the Borrower may be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict disclosed only with the ~~terms~~ Borrower’s consent which will not be unreasonably withheld. This paragraph (f) may not be amended without the written consent of ~~this Agreement or Applicable Law. In connection~~ any SPC with ~~providing access to~~ Loans outstanding at the ~~Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access~~ time of such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Northwestern Corp)

Appears in 1 contract

Samples: Credit Agreement (Imperial Sugar Co /New/)

Appears in 1 contract

Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without the consent of the Issuer~~in accordance with applicable law, ~~assign or transfer~~ at any time sell to one or more ~~assignees~~ banks or other entities ("Participants") participating interests in any Loan or L/C Obligation owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, that is no participations shall be in an amount less than $2,500,000 or a ~~Permitted Transferee~~ whole multiple of $100,000 in excess thereof or, if less than $2,500,000, the entire amount of such Lender's applicable Commitment. 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 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 11.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 4.9, 4.10 and 4.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender; provided that, in the case of Section 4.10, 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. (~~each~~c) Any Lender may, in accordance with applicable law, at any time and from time to time assign to any Person (an “"Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit A, executed by such Assignee and such ~~Noteholder~~ assigning Lender and delivered to the ~~Issuer~~ Agent for its ~~records, together~~ acceptance and recording in the Register (with ~~any related rights~~ a copy to the Borrower) and ~~obligations thereunder and,~~ upon payment to the Agent of a processing fee in ~~each case, in accordance with any applicable securities laws~~ the amount of ~~any state of the United States~~$3,000; provided that, (i) no such assignment shall be in an amount less than $2,500,000 or a whole multiple of $100,000 in excess thereof or, if less than $2,500,000, the entire amount of such Lender's applicable Commitment; (ii) no such assignment shall be made without the prior consent of the Agent and the Borrower (which consent shall not be unreasonably withheld or delayed) unless such assignment is to another Lender or an Affiliate of a Lender, in which event no such consent shall be required; and (iii) no such assignment may be made unless such assigning Lender assigns an equal percentage of its interest in both the Tranche A Facility and the Tranche B Facility. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement. (d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit O (an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes. (e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8 (Certificate of Foreign Status of the U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the case may be, is not a "bank" within the meaning of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purposes). (f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be ~~made if such transfer~~effective unless it has been recorded in the Register as provided in this Section 11.6(f). (g) The Agent, ~~or such transfer together with any prior transfers~~on behalf of the Borrower, ~~would trigger registration requirements under~~ shall maintain at the ~~Exchange Act. The Issuer or its agent will maintain~~ address of the Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders (including Alternative Noteholders) and the Commitments of, and principal ~~amount~~ amounts of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer~~ , and the Borrower, the Agent and the Lenders may (and, in the case of any ~~Note in violation of the foregoing restrictions~~Loan or other obligation hereunder not evidenced by a Note, ~~the restrictions set forth in Section 8.6(e~~shall) ~~or the restrictions set forth~~ treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured~~ Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation hereunder not evidenced by a Note ~~Documents as are reasonably required~~ shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to ~~accommodate any~~ time upon reasonable prior notice. (h) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee together with payment to the Agent of a registration and processing fee of $3,000, the Agent shall (i) promptly accept such ~~assignments, including, without limitation, amendments or modifications which provide for~~ Assignment and Acceptance and (ii) on the ~~accommodation~~ effective date determined pursuant thereto record the information contained therein in the Register and give notice of ~~multiple holders~~ such acceptance and recordation to the Lenders and the ~~appointment of administrative~~ Borrower. (i) Subject to Section 11.16, the Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and ~~collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost~~ any prospective Transferee, subject to the ~~Issuer~~ Transferee agreeing to be bound by the provisions of ~~maintaining~~ Section 11.16, any and all financial information in such Lender's possession concerning the ~~Notes. If there is more than one Noteholder,~~ Borrower and the ~~Issuer shall provide all information and documents~~ Subsidiaries which has been delivered ~~hereunder~~ to such Lender by or on behalf of the ~~Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment~~ Borrower pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent Agreement or which has been delivered to such Lender by or on behalf of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrower in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant~~ Borrower and its Subsidiaries prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (dj) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Radio One Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 -------- that no such sale of a participation to a Participant (other than any Lender or any affiliate thereof) shall be in an ~~“Assignee”)~~ aggregate principal amount of less than $10,000,000 (other than in the case of a transfer of all or of a ~~portion~~ Lender's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent. In the event of ~~its rights and~~ any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due and payable, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ -------- Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 9.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.16, 2.17 and ~~2.13~~ 2.18 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 2.17, such Participant shall have -------- complied with the requirements of said Section and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no -------- ------- Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred. (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, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or -------- any part of its rights and obligations under this Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and 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 thereof) shall be in an aggregate principal amount of less than $10,000,000 (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. Any such ~~transfer occurs while an Event of Default~~ assignment need not be ratable as between the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall ~~have occurred and~~ be ~~continuing. To~~ a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and ~~subject~~ (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such ~~Noteholder, on behalf of Issuer,~~ assigning Lender shall ~~maintain~~ cease to be a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”party hereto), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) ~~For avoidance~~ The Administrative Agent shall maintain at its address referred to in Section 9.2 a copy of ~~doubt~~each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation of the names and addresses of the -------- Lenders and the Commitments of, and the ~~parties~~ principal amount of the Loans owing to, each Lender from time to ~~this Agreement acknowledge that~~ time and the ~~provisions~~ registered owners of ~~this Section 8.6 concerning assignments of~~ the Notes ~~relate~~ evidencing the Loans. Notes and the Loans evidenced thereby may be assigned or otherwise transferred in whole or in part only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~this Agreement and only by registration of such assignment or transfer on the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of such Loans and the Notes evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Notes evidencing such Loans, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee and the old Note shall be returned by the Agent to the Borrower marked "cancelled". 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 Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan or other obligation hereunder and any Note evidencing such Loan shall be effective only upon appropriate entries with respect thereto being made in the Register. (e) ~~The Notes have~~ 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 ~~been registered under~~ then a Lender or an affiliate thereof, by the ~~United States Securities Act~~ Borrower and the Administrative Agent) together with payment to the Administrative Agent of ~~1933, as amended~~ a registration and processing fee of $4,000 (payable by either the ~~“Securities Act”~~Assignor or the Assignee), ~~or any state securities laws, and, accordingly, may not be offered or sold except as set forth~~ the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) record the information contained therein in the ~~following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of~~ Register on the ~~Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom~~effective date determined pursuant thereto. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section ~~8.1~~9.15, ~~if there is more than one Noteholder~~ 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 Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision~~ to this Agreement or any other ~~Secured Note~~ 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. (iig) Notwithstanding anything to the contrary in this Section 9.6, any ~~advice~~Lender may at any time pledge or assign a security interest in its rights under this Agreement to a Federal Reserve Bank, ~~consent, vote, action, direction~~ and this Section 9.6 shall not apply to any such pledge or ~~other matter to be taken,~~ assignment of a security interest; provided that no such -------- pledge (whether or not ~~taken~~ foreclosed upon) or ~~determined~~ assignment of a security interest shall release a Lender from any of its obligations under this Agreement or substitute any ~~other Secured Note Document by~~ such pledgee or assignee for such Lender as a party thereto. In order to facilitate any such pledge or assignment, the ~~Noteholders~~Borrower agrees, upon request of any Lender, to execute and deliver a promissory note substantially in the ~~case~~ form of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.Exhibit G.

Appears in 1 contract

Samples: Credit Agreement (FLN Finance Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, the Issuing Lender, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower or the Administrative Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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. 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 Borrower, the Administrative Agent and the Issuing Lender shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have 509265-1918-Active.20125323.120125323.6 agreed to share with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and limitations therein, including the requirements under Section 2.15(d) (it being understood that the documentation required under Section 2.15(d) shall be delivered to the participating Lender)) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the 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, with the consent of the Borrower, the Administrative Agent and the Issuing Lender; provided, however, that no consent of the Issuing Lender shall be required for an assignment of all or any portion of a Term Loan, New Term Loan or New Term III Loan (which, in each case, shall not be unreasonably withheld, delayed or conditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a Lender should notify the Borrower as promptly as possible of any request for assignment and the Borrower, in turn, should promptly consider such request for assignment; and (ii) the Borrower's consent shall not be considered to be unreasonably withheld, delayed or conditioned if the Borrower withholds, delays or conditions its consent because, among other factors, it is concerned about a potential Assignee's capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and,~~ recording in ~~each case, in accordance with any applicable securities laws of any state of~~ the ~~United States~~Register; provided that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in ~~no event may any transfer~~ an aggregate principal amount of less than $10,000,000, in each case except 509265-1918-Active.20125323.120125323.6 in the case of an assignment of all of a ~~Note~~ Lender’s interests under this Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be ~~made~~ aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such ~~transfer~~execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 9.6, the consent of the Borrower shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or ~~such transfer together with~~ the Administrative Agent any ~~prior transfers~~or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 9.6(c). (d) The Administrative Agent shall, ~~would trigger registration requirements under~~ on behalf of the ~~Exchange Act. The Issuer or~~ Borrower, maintain at its ~~agent will maintain~~ address referred to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount ~~of the Notes~~ (and stated ~~interest thereon~~interest) ~~held by~~ of the Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, the Administrative Agent, the Issuing Lender and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a promissory note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of ~~any Note in violation~~ all or part of a Loan evidenced by a promissory note shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~promissory note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new promissory notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without~~ an Assignee and any other Person whose consent is required by Section 9.6(c), together with payment to the ~~consent~~ Administrative Agent of a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is a Lender Affiliate of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(crelevant Assignor), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 9.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to ~~any~~ secure obligations to a Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act~~ applicable law; provided that no such pledge or assignment shall release a Lender from any of ~~1933,~~ its 509265-1918-Active.20125323.120125323.6 obligations hereunder or substitute any such pledgee or assignee for such Lender as ~~amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilityparty hereto. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue a promissory note to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring such a note to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Each of the ~~Initial Noteholder) with any report~~Borrower, ~~notice, financial statement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; provided, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access a proceeding against such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~Conduit Lender.

Appears in 1 contract

Samples: Competitive Advance and Revolving Credit Agreement (Tegna Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Term Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 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 reduce the principal of, or interest on, the Term Loans or any fees payable hereunder, release all or substantially all of the Collateral, release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Term Loans, in each case to the extent subject to such participation. 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 9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 with respect to its participation in the Commitments and the Term Loans outstanding from time to time as if it were a Lender; provided that, in the case of Section 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. (c) Any Lender (an "Assignor") may, in accordance with applicable law and upon written notice to the Syndication Agent, at any time and from time to time assign to any Lender or any affiliate or Approved Fund or Control Investment Affiliate thereof or, with the consent of the Borrower and the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided the consent of the Borrower need not be obtained with respect to any assignment of Term Loans), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower or the Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~together with any related~~ unless otherwise agreed by the Borrower, the Syndication Agent 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 2.14, 2.15, 2.17 and 9.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective 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. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 9.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Term Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 the Term Loans recorded therein for all purposes of this Agreement. Any assignment of any Term Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Term Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Term Loan, accompanied by a duly executed Assignment and 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 ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ entry relating to such Lender's Term Loans) or Agent at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 9.6(c), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is more than one Noteholder, the Issuer~~ a registration and processing fee of $3,500 (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to Xxxxxx Commercial Paper Inc. or any Affiliate thereof or (z) in the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and 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 applicable Notes of the assigning Lender) a new Note or Notes to the order of such Assignee in an amount equal to the applicable Term Loans acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and Acceptance and, if the Assignor has retained Term Loans, upon request, a new Note or Notes to the order of the Assignor in an amount equal to the applicable Term Loans retained by it hereunder. Such new Note or Notes shall ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERClosing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Term Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Term Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Term Loan Agreement (B&g Foods Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Administrative Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Credit Documents; provided that (unless the Borrower and the Administrative Agent otherwise consent in writing) no such participating interests shall be in an aggregate principal amount of less than $5,000,000 in the aggregate (or, if less, the full amount of such selling Lender's Loans and Commitments). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Credit Documents, and the Borrower and the 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 Credit Documents. Any agreement pursuant to which any Lender shall sell any such participating interest shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender's rights and enforce the Borrower's obligations hereunder, including the right to consent to any amendment, supplement, modification or waiver of any provision of this Agreement or any of the other Credit Documents, and no Lender shall be entitled to create in favor of any Participant, in the participation agreement pursuant to which such Participant's participating interest shall be created or otherwise, any right to vote on, consent to or approve any matter relating to this Agreement or any other Credit Document, provided that such participation agreement may provide that, without the consent of the ~~Issuer~~Participant, such Lender will not agree to any amendment, supplement, modification or waiver reducing the amount or rate of, or extending the due date of, any payment hereunder, or consenting to the transfer by the Borrower of any of its rights or obligations hereunder. The Borrower also agrees that each Lender shall be entitled to the benefits of subsections 9.14, 9.15 and 9.16 without regard to whether it has granted any participating interests, and that all amounts payable to a Lender under subsections 9.14, 9.15 and 9.16 shall be determined as if such Lender had not granted any such participating interests. (c) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to (A) any Lender or ~~transfer~~ any Affiliate thereof, or (B) with the consent of the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld), to ~~one~~ any additional bank or ~~more assignees that is a Permitted Transferee~~ financial institution (~~each~~any such assignee, an “"Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Credit Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~Exhibit D, executed by such ~~Assignee and~~ Assignee, such ~~Noteholder~~ assigning Lender (and, to the extent required pursuant to (B) above, by the Borrower) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register, ~~together with~~ provided that (x) in the case of any ~~related~~ such assignment, the sum (without duplication) of the aggregate principal amount of the Loans and the aggregate amount of the Available Commitment being assigned is not less than $5,000,000 (or, if less, the full amount of such selling Lender's Loans and Commitments), or such lesser amount as may be agreed to by the Borrower and the Administrative Agent, and (y) if any Lender assigns all or any part of its rights and obligations under this Agreement to one of its Affiliates in connection with or in contemplation of the sale or other disposition of its interest in such Affiliate, the Borrower's prior written consent shall be required for such assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with any applicable securities laws~~ such assigning Lender shall cease to be a party hereto). Notwithstanding the foregoing, no Assignee, which as of the date of any ~~state~~ assignment to it pursuant to this subsection 17.6(c) would be entitled to receive any greater payment under subsection 9.14 or 9.15 than the assigning Lender would have been entitled to receive as of such date under such subsections with respect to the rights assigned, shall be entitled to receive such payments unless the Borrower has consented in writing to the assignment and agreed in writing to waive the benefit of this sentence. (d) The Administrative Agent, on behalf of the ~~United States; provided that~~Borrower, shall maintain at the address of the Administrative Agent, referred to in ~~no event may any transfer~~ subsection 17.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitments of, and principal ~~amount~~ amounts of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive~~ conclusive, and ~~binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of~~ the ~~foregoing restrictions~~Borrower, the ~~restrictions set forth in Section 8.6(e) or~~ Administrative Agent and the ~~restrictions set forth~~ Lenders shall treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured Note Documents as are reasonably required to accommodate~~ Credit Documents, notwithstanding any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost notice to the ~~Issuer~~ contrary. Any assignment of ~~maintaining~~ any 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 ~~Notes. If there is more than one Noteholder, the Issuer~~ Register (and each Note shall expressly provide ~~all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request~~so). The ~~Initial Note~~ Register shall be available for inspection by the Borrower or any Lender at any reasonable time and ~~each additional Note issued pursuant~~ from time to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERtime upon reasonable prior notice. (ce) ~~Any Noteholder may~~Upon receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, ~~without~~ in the ~~consent~~ case of an Assignee that is not then a Lender or an affiliate thereof, by the ~~Issuer~~Borrower and the Administrative Agent), ~~sell participations~~ together with payment to the Administrative Agent of a ~~Permitted Transferee~~ registration and processing fee of $2,500, the Administrative Agent shall (~~a “Participant”~~i) promptly accept such Assignment and 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 assigning Lender shall surrender any outstanding Note held by it all or a portion of which are being assigned, and each Borrower, at its own expense, shall, upon the request to the Administrative Agent execute and deliver to the Administrative Agent (in exchange for the outstanding Note of the assigning Lender) a new Note to the order of such ~~Noteholder’s rights~~ Assignee in an amount equal to (i) the amount of such Assignee's Commitment after giving effect to such Assignment and ~~obligations under~~ Acceptance and, if the assigning Lender has retained a Commitment hereunder, a new Note to the order of the assigning Lender in an amount equal to the amount of such Lender's Commitment after giving effect to such Assignment and Acceptance. Any such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. Any Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Borrower marked "canceled". (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the provisions of subsection 17.15, 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 ~~(including all~~ or ~~a portion~~ which has been delivered to such Lender by or on behalf of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrower in connection with such ~~Noteholder’s rights~~ Lender's credit evaluation of the Borrower and ~~obligations under~~ its Affiliates prior to becoming a party to this ~~Agreement and provided, further, that in no event may any~~ Agreement. No assignment or participation ~~in a Note~~ made or purported to be made ~~if such indirect transfer, or such indirect transfer together with~~ to any ~~prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation~~ Transferee shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, be effective without the prior written consent of the ~~Participant~~Borrower if it would require the Borrower to make any filing with any Governmental Authority or qualify any Loan or Note under the laws of any jurisdiction, ~~agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to~~ and the ~~terms of this Section 8.6(c), the Issuer agrees that each Participant~~ Borrower shall be entitled to ~~the benefits of Section 2.12,~~ request and ~~2.13~~ receive such information and assurances as it may reasonably request from any Lender or any Transferee to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If determine whether any such filing or qualification is required or whether any assignment or participation is otherwise in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERaccordance with applicable law. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 8.6~~ subsection concerning assignments of Loans and Notes ~~relate only to absolute assignments and that such provisions~~ do not prohibit ~~assignments creating security interests in Notes, including, without limitation,~~ any pledge ~~or assignment~~ by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Short Term Credit Agreement (Acterna Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the DIP Lenders, the Administrative Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ no Obligor may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent (and any ~~attempted~~ purported such assignment or transfer by ~~the Issuer~~ any Obligor without such consent shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ DIP Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is~~ banks, financial institutions or other entities, other than a ~~Permitted Transferee~~ natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (~~each, an~~ “~~Assignee~~Participant”) ~~all~~ participating interests in any DIP Loan owing to such DIP Lender, any Commitment of such DIP Lender or any other interest of such DIP Lender hereunder and under the other DIP Loan Documents. In the event of any such sale by a ~~portion~~ DIP Lender of ~~its rights and~~ a participating interest to a Participant, such DIP Lender’s obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ DIP Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such DIP Lender shall remain the holder of any such ~~obligations~~DIP Loan for all purposes under this Agreement (other than Sections 3.6 and 3.7) and the other DIP Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ DIP Lender in connection with such ~~Noteholder~~DIP Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other DIP Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment to or waiver of any provision of any DIP Loan Document (including without limitation wavers relating to Defaults or Events of Default), or any consent to any departure by any Obligor therefrom, except to the extent that such amendment, waiver or consent would increase any DIP Loan Commitment in which it is participating, reduce the principal of, or the stated rate of interest on, the DIP Loans or any fees payable hereunder, or postpone the date of the final maturity or any scheduled amortization of the DIP Loans, or release all or substantially all of the DIP Collateral under the Security Documents or substantially reduce the amount of the guarantee in Section 10 of this Agreement, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to such Participant as a DIP Lender under this Agreement; provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ DIP Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 11.7(a) as fully as if such Participant were a ~~UST Non-Binding Amendment~~DIP Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits ~~of Section 2.12~~of, and ~~2.13~~ bound by the obligations imposed on the DIP Lenders in, Sections 3.6 and 3.7 with respect to its participation in the ~~same extent~~ Commitments and the DIP Loans outstanding from time to time as if it were a ~~Noteholder~~ DIP Lender. (c) Any DIP Lender may, in accordance with applicable law, at any time and ~~had acquired~~ from time to time assign to any DIP Lender or any Affiliate or Approved Fund thereof or, with the consent of the Required DIP Lenders (other than a Defaulting DIP Lender) (which shall not be unreasonably withheld), to an Eligible Assignee all or any part of its ~~interest by assignment~~ rights and obligations under this Agreement and the other DIP Loan Documents pursuant to ~~paragraph~~ an Assignment and Acceptance, substantially in the form of Exhibit D, appropriately completed (an “Assignment and Acceptance”), executed by such Eligible Assignee, such assigning DIP Lender (and, in the case of an Eligible Assignee that is not then a DIP Lender or an Affiliate thereof, by the Administrative Agent), and attaching the Eligible Assignee’s relevant administrative details and wiring instructions, 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 DIP Lender or any Affiliate or Approved Fund of a DIP Lender) shall be in an aggregate principal amount of less than $500,000 (other than in the case of (a) an assignment of all of a DIP Lender’s interests under this Agreement or (b) an assignment to an Affiliate or Approved Fund of ~~this Section 8.6; provided~~the assignor or another DIP Lender), ~~that~~ unless otherwise agreed by the ~~Noteholders~~ Administrative Agent (such amount to be aggregated in respect of assignments by to any DIP Lender and ~~all Participants shall be entitled to receive no greater amount in~~ the ~~aggregate~~ Affiliates or Approved Funds thereof). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such ~~Sections than~~ Assignment and Acceptance, (A) the ~~Noteholder would have been entitled~~ Eligible Assignee thereunder shall be a party hereto and, to ~~receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a DIP Lender hereunder with Commitments as set forth therein, and ~~subject~~ (B) the assigning DIP Lender thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning DIP Lender’s rights and obligations under this Agreement, such ~~Noteholder~~assigning DIP Lender shall cease to be a party hereto, except as to Sections 3.6, 3.7 and 11.5 in respect of the period prior to such effective date). Any assignment or transfer by a DIP Lender of rights or obligations under this Agreement that does not comply with this Section 11.6(c) shall be treated for purposes of this Agreement as a sale by such DIP Lender of a participation in such rights and obligations in accordance with clause (b) of this Section 11.6. (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrower, shall maintain at the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the DIP Lenders and the DIP Commitments of, and principal amounts of the DIP Loans owing to, each DIP Lender from time to time. Failure to make any such recordation, or any error in such recordation shall not affect the Borrower’s obligations in respect of such rights. If a DIP Lender sells a participation in its rights hereunder, it shall maintain a register on as agent of the Borrower, which ~~it enters~~ shall contain the ~~name, address and interest~~ information described in this paragraph and beginning with the time that such Participant wishes to exercise direct rights against the Borrower, the DIP Lender shall, at the Borrower’s request, disclose to the Borrower the information the DIP Lender has maintained pursuant to this Section 11.6(d) with respect to that Participant. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Administrative Agent and the DIP Lenders shall treat each Person whose name is recorded in the Register as the owner of a DIP Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement ~~of all Participants~~and the other DIP Loan Documents, notwithstanding any notice to the contrary. ~~Each Noteholder shall refuse to register any transfer~~ Any assignment of any ~~participation in violation of the foregoing restrictions~~DIP Loan or other obligation hereunder, ~~the restrictions set forth in Section 8.6(e)~~ whether or ~~the restrictions set forth~~ not evidenced by a DIP Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Note~~Register. If The Register shall be available for inspection by the Borrower or any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERDIP Lender at any reasonable time and from time to time upon reasonable prior notice. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning DIP Lender and an Eligible Assignee (and, in the case of an Eligible Assignee that is not then a DIP Lender or an Affiliate or Approved Fund thereof, by the Administrative Agent), together with payment to the Administrative Agent of a registration and processing fee of $3,500 payable by the assigning DIP Lender, the Administrative Agent shall (i) promptly accept such Assignment and 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 DIP Lenders and the Borrower. (f) The Borrower authorizes each DIP Lender to disclose to any Participant or Eligible Assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such DIP Lender’s possession concerning the Borrower and its Affiliates which has been delivered to such DIP Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such DIP Lender by or on behalf of the Borrower in connection with such DIP Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement; provided that, such Transferee shall have agreed to be bound by the provisions of Section 11.15 hereof. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 11.6 concerning assignments of DIP Loans and DIP Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, (i) any pledge or assignment by a ~~Noteholder~~ DIP Lender of any DIP Loan or DIP Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act applicable law and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any ~~advice~~pledge or assignment by a DIP Lender which is a fund to its trustee for the benefit of such trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party, ~~consent, vote, action, direction~~ or to a DIP Lender to or other ~~matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case~~ holder of ~~each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date~~ obligations of such ~~determination)~~DIP Lender; provided ~~that the unanimous consent~~ that, no such pledge or assignment of ~~all Noteholders~~ a security interest shall ~~be required with respect to~~ release a DIP Lender from any of its obligations hereunder or substitute any such ~~waiver, amendment, modification, supplement, restatement~~ pledgee or ~~other revision to this Agreement or any other Secured Note Document that is~~ assignee for such DIP Lender as a ~~UST Non-Binding Amendment~~party hereto. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Debtor in Possession Credit Agreement (Verasun Energy Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender and (~~and~~ ii) any attempted assignment or transfer by the ~~Issuer~~ Borrower without such consent shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower or the Administrative Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) participating interests in ~~all or a portion~~ any Loan owing to such Lender, the Participation of such ~~Noteholder~~Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s ~~rights and~~ obligations under this Agreement ~~(including all or a portion of~~ to the ~~Notes owing~~ other parties to ~~it); provided that (A) such Noteholder’s obligations under~~ this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lxxxxx’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except any amendment, waiver or consent described in clause (w) of the proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 8.7 as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section~~ Sections 2.12, 2.13 and ~~2.13~~ 2.14 (and subject to the ~~same extent~~ limitations thereof) with respect to its participation in the Participations and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 2.13, such Participant shall have complied with the requirements of Section 2.13 (including the requirements under Sections 2.13(e), 2.13(f) and ~~had acquired its interest by assignment pursuant~~ 2.13(g) (it being understood that the documentation required under Sections 2.13(e), 2.13(f) and 2.13(g) shall be delivered to ~~paragraph (b~~the participating Lender)) ~~of this Section 8.6;~~ as if it was a Lender, and provided, further, that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to ~~such~~ Sections 2.11, 2.12 or 2.13 (as the case may be) than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred unless~~ occurred, except to the extent such ~~transfer~~ entitlement to receive a greater payment results from a Change in Law made subsequent to the First Amendment and Restatement Effective Date that occurs ~~while~~ after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Participations or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Participation or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive, in the absence of manifest error, and such Lender, each Loan Party and the Administrative Agent shall treat each person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this Agreement, notwithstanding notice to the contrary. (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 Person (other than the Borrower or any of its Affiliates or an Ineligible Institution) (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and in the case of the Borrower shall be deemed to have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this Agreement. To For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Participation and/or Loans as set forth therein, and ~~subject~~ (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such ~~Noteholder~~Assignor shall cease to be a party hereto). Notwithstanding the foregoing, ~~on behalf of Issuer, shall maintain a register on which it enters~~ any Conduit Lender may assign at any time to its designating Lender hereunder without the ~~name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation~~ consent of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Borrower or the ~~restrictions~~ 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 Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”first sentence of this Section 8.6(c), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) ~~For avoidance~~ The Administrative Agent shall, on behalf of ~~doubt~~the Borrower, maintain at its address referred to in Section 8.2 a copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Participation of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the ~~parties to this Agreement acknowledge that~~ Administrative Agent and the ~~provisions~~ Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this ~~Section 8.6 concerning assignments~~ Agreement. Any assignment of ~~Notes relate only to absolute assignments and that such provisions do~~ any Loan or Participation, whether or not ~~prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment~~ evidenced by a ~~Noteholder~~ Note, shall be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan or Participation evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan or Participation accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to ~~any Federal Reserve Bank in accordance with Applicable Law~~the designated Assignee. (e) ~~The Notes have not been registered under the United States Securities Act~~ Upon its receipt of ~~1933~~an Assignment and Acceptance executed by an Assignor, ~~as amended (the “Securities Act”~~an Assignee and any other Person whose consent is required by Section 8.6(c), ~~or any state securities laws~~together with payment to the Administrative Agent of a registration and processing fee of $4,000 (such fee not payable with respect to assignments to an Assignor’s Affiliate and such fee not to be payable by the Borrower, ~~and~~except for an assignment pursuant to Section 2.17), ~~accordingly, may not be offered or sold except as set forth~~ the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) record the information contained therein in the ~~following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of~~ Register on the ~~Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom~~effective date determined pursuant thereto. (f) ~~Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if~~ Any Lender may at any time ~~the Notes (~~pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as ~~defined in the UST Facility) are registered under the Securities Act or exchanged for~~ a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilityparty hereto. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lxxxxx, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Each of the ~~Initial Noteholder) with any report~~Borrower, ~~notice, financial statement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; provided, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 1 contract

Samples: Revolving Credit Agreement (Bunge Global SA)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, ~~all future Noteholders~~ the Lenders, the Agents and their respective successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ no Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (and any ~~attempted~~ purported such assignment or transfer by ~~the Issuer~~ a Borrower without such consent of each Lender shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, ~~without the consent of the Issuer~~in accordance with applicable Law, ~~assign or transfer~~ at any time sell to one or more ~~assignees that is~~ banks, financial institutions or other entities (individually a ~~Permitted Transferee (each~~“Participant” and, an collectively, the “~~Assignee~~Participants”) ~~all~~ participating interests in any Loan, OID Obligation or Reimbursement Obligation owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder or under the other Loan Documents (a ~~portion~~ “Participation”). In the event of ~~its rights and~~ any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan, ~~(C)~~ OID Obligation, Reimbursement Obligation or other interest for all purposes under this Agreement and the ~~Issuer~~ other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment to 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 reduce the principal of, or the stated rate of interest on, the Loans, OID Obligations, Reimbursement Obligation or any fees payable hereunder, or postpone the date of the final maturity of the Loans, OID Obligations or Reimbursement Obligations, in each case to the extent subject to such participation. The Borrowers agree that if amounts outstanding under this Agreement are due or unpaid during an Event of Default, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable Law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant,~~ proceeds thereof as provided in Section 11.9(a) as fully as if it were a Lender hereunder. The Borrowers also agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits ~~of Section 2.12~~of, and ~~2.13~~ bound by the obligations imposed on the Lenders in, Sections 4.10, 4.11, and 4.14 with respect to its participation in the ~~same extent~~ Commitments and the Loans, OID Obligations and other extensions of credit hereunder outstanding from time to time as if it were a ~~Noteholder~~ Lender. (c) Any Lender may, in accordance with applicable Law, at any time and ~~had acquired~~ from time to time assign to any Lender or any Subsidiary, Affiliate or Approved Fund thereof, or, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), the Issuing Lenders, and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent (which consent shall not be unreasonably withheld or delayed), to any other Person (the “Assignee”), all or any part of its ~~interest by assignment~~ rights and obligations under this Agreement and the other Loan Documents (including for the avoidance of doubt, its rights in the Credit-Linked Deposit Account) pursuant to ~~paragraph~~ an Assignment and Acceptance, substantially in the form of Exhibit F, appropriately completed (ban “Assignment and Acceptance”), executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or any Subsidiary, Affiliate or Approved Fund thereof, by the Administrative Agent, the Revolving Issuing Lenders (in the case of an assignment of a Revolving Commitment or Revolving Credit Loans), the Credit-Linked Issuing Lender (in the case of an assignment of a Credit-Linked Commitment) and, after the Syndication Date and so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) each such assignment to an Assignee (other than any Lender) shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (other than in the case of (A) an assignment of all of a Lender’s interests under this Agreement or (B) an assignment to another Lender or to a Subsidiary, an Affiliate or an Approved Fund of such assigning Lender), unless otherwise agreed by the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, Borrowers’ Agent (such amount to be aggregated in respect of assignments to any Lender and the affiliates or Approved Funds thereof), (ii) in the case of an assignment by a Lender to a Bank CLO managed by such Lender or an affiliate of such Lender, unless such assignment to such Bank CLO has been consented to by the Administrative Agent, the Issuing Lenders and Borrowers’ Agent (such consent not to be unreasonably withheld or delayed), the assigning Lender shall retain the sole right to approve any amendment, waiver or other modification of this Agreement or any other Loan Document; provided that, the Assignment and Acceptance between such Lender and such Bank CLO may provide that such Lender will not, without the consent of such Bank CLO, agree to any amendment, modification or waiver that requires the consent of each Lender directly affected thereby pursuant to Section ~~8.6; provided~~11.2, ~~that~~ (iii) any assignment of all or a portion of the ~~Noteholders and all Participants~~ Credit-Linked Commitment of a Credit-Linked Lender shall be ~~entitled to receive no greater amount in~~ accompanied by an assignment of a ratable portion of such Credit-Linked Lender’s OID Obligations, and (iv) each Assignee shall comply with the ~~aggregate~~ provisions of Section 4.11(e). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such ~~Sections than~~ Assignment and Acceptance, (x) the ~~Noteholder would have been entitled~~ Assignee thereunder shall be a party hereto and, to ~~receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ the extent ~~permitted by law~~provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments as set forth therein, and ~~subject~~ (y) the assigning Lender thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this Section 11.8, (x) the consent of Borrowers’ Agent shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment which occurs at any time when any of the events described in Section 9.1(g) shall have occurred and be continuing and (y) the Borrowers shall be deemed to have consented to any assignment that requires such consent pursuant to the terms thereof unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.8 shall be treated for purposes of this Agreement as a sale by such Lender of a Participation in such rights and obligations in accordance with Section 11.8(b). (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrowers, shall maintain at the address of the Administrative Agent referred to in Section 11.3 a copy of each Assignment and Acceptance delivered to it and a record of each Participation and a register ~~on which it enters~~ (the ~~name~~“Register”) for the recordation of the names and addresses of the Lenders (including all Assignees, ~~address~~ successors and ~~interest~~ Participants) and the Commitments of, and principal amounts of the Loans, OID Obligations and other Obligations owing to, each Lender from time to time, and in the case of each Credit-Linked Lender, such Credit-Linked Lender’s share of the Credit-Linked Deposit Account. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders 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 owner thereof for all purposes of this Agreement ~~of all Participants~~and the other Loan Documents, notwithstanding any notice to the contrary. ~~Each Noteholder shall refuse to register any transfer~~ Any assignment of any ~~participation in violation of the foregoing restrictions~~Revolving Credit Loan or other obligation hereunder, ~~the restrictions set forth in Section 8.6(e)~~ whether or ~~the restrictions set forth~~ not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Note~~Register. The Register shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice. If any ~~such participation is~~ Lender sells a Participation as described in ~~certificated form~~Section 11.8(b), it shall ~~bear~~ provide to the ~~following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933~~Administrative Agent on behalf of the Borrowers, ~~AS AMENDED (THE “SECURITIES ACT”)~~or maintain as agent of the Borrowers, OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthe information described in this paragraph and permit the Administrative Agent and the Borrowers to review such information as reasonably needed for the Administrative Agent and the Borrowers to comply with their obligations under this Agreement or under any applicable Law or governmental regulation or procedure. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender, by the Administrative Agent, the Issuing Lenders and, so long as no Default or Event of Default has occurred and is continuing, the Borrowers’ Agent), together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $3,500 (other than in the case of an assignment to a Lender or a Subsidiary or Affiliate of a Lender or any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the applicable Register and give notice of such acceptance and recordation to the Lenders and the Borrowers. (f) The Borrowers authorize each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee in each case, any and all financial information in such Lender’s possession concerning the Borrowers, the other Loan Parties and their Subsidiaries and Affiliates which has been delivered to such Lender by or on behalf of the Borrowers pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrowers in connection with such Lender’s credit evaluation of the Borrowers, the other Loan Parties and their Subsidiaries and Affiliates prior to becoming a party to this Agreement; provided that such Transferee shall have agreed to be bound by the provisions of Section 11.17 hereof. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 11.8 concerning assignments of Loans and other extensions of credit hereunder and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, (i) any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act applicable Law and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any ~~advice, consent, vote, action, direction~~ pledge or ~~other matter~~ assignment by a Lender which is a fund to ~~be taken, not taken or determined under this Agreement or any other Secured Note Document by~~ its trustee for the ~~Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date~~ benefit of such ~~determination)~~trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that ~~the unanimous consent~~ no such pledge or assignment of ~~all Noteholders~~ a security interest shall ~~be required with respect to~~ release a Lender from any of its obligations hereunder or substitute any such ~~waiver, amendment, modification, supplement, restatement~~ pledgee or ~~other revision to this Agreement or any other Secured Note Document that is~~ assignee for such Lender as a ~~UST Non-Binding Amendment~~party hereto. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide~~ Notwithstanding the foregoing, any ~~Noteholder (other than~~ Lender may, with notice to, but without consent of, the ~~Initial Noteholder)~~ Borrowers and the Administrative Agent, and in accordance with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the ~~extent such action does not conflict with~~ definition of “Conduit Lender” set forth in Section 1.1 hereof and the terms of this ~~Agreement~~ Section 11.8(h), designate a Conduit Lender and fund any of the Loans or ~~Applicable Law~~Unreimbursed Amounts which such Lender is obligated to make or pay hereunder by causing such Conduit Lender to fund such Loans or Unreimbursed Amounts on behalf of such Lender. Any Conduit Lender may assign any or all of the Loans or Unreimbursed Amounts it may have funded hereunder to its designating Lender without the consent of the Borrowers or the Administrative Agent and without regard to the limitations set forth in Section 11.8(c). Each of the Borrowers, each Lender and each 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, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar Law in connection with any obligation of such Conduit Lender under the Loan Documents, for one year and one day after the payment in full of 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 expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. In ~~connection~~ addition, notwithstanding the foregoing, any Conduit Lender may (i) with ~~providing access to~~ notice to, but without the ~~Issuer’s internet website~~prior written consent of, the ~~Issuer~~ Borrowers and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans or Reimbursement Obligations to any financial institutions (consented to by Borrowers’ Agent and the Administrative Agent) providing liquidity and/or credit support to or for the account of such Conduit Lender to support the funding or maintenance of Loans or Reimbursement Obligations by such Conduit Lender and (ii) disclose on a confidential basis any non-public information relating to its Loans and its Reimbursement Obligations to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such Conduit Lender. This clause (h) may ~~take reasonable measures to ensure that only then current Noteholders may access such information including,~~ not be amended without ~~limitation, requiring registration, a confidentiality agreement, evidence~~ the written consent of ~~ownership and acceptance of a disclaimer~~any Conduit Lender directly affected thereby.

Appears in 1 contract

Samples: Credit Agreement (SemGroup Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Company, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Company may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Agents and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Company, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~a "Participant") ~~all~~ 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 ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Company and the Agents shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation or would release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their obligations under the Collateral Agreement. The Company agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under 101 this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ -------- Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 12.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Company also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 3.12, 3.13 and ~~2.13~~ 3.14 with respect to its participation in the ~~same extent~~ Commitments and the Loans outstanding from time to time as if it ~~were~~ was a ~~Noteholder~~ Lender; provided that, in the case of Section 3.13, such Participant shall have -------- complied with the requirements of said Section and ~~had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6;~~ provided, further, that ~~the Noteholders and all Participants~~ no -------- ------- Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred. (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 thereof, any investment fund or other entity advised or managed by such Lender or any affiliate thereof, or, with the consent of the Company and the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided -------- that the consent of the Company need not be obtained with respect to any assignment of Term Loans), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this -------- Agreement pursuant to an Assignment and Acceptance, substantially in the form of Exhibit K, executed by such Assignee, such Assignor, the Administrative Agent and the Syndication Agent (and, where the consent of the Company is required pursuant to the foregoing provisions, by the Company) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that no such assignment to an Assignee (other than to any Lender or any affiliate thereof or any investment fund or other entity advised or managed by such Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,500,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Company, the Administrative Agent and the Syndication Agent. Any such ~~transfer~~ 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 Acceptance (which, unless the Administrative Agent shall otherwise agree, shall not be less than three Business Days following the delivery to the Administrative Agent of such Assignment and Acceptance for acceptance and recording), (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 12.6, the consent of the Company shall not be required for any assignment which occurs ~~while an~~ at any time when any Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder. (d) The Administrative Agent shall, on behalf of ~~Issuer~~the Borrowers, ~~shall~~ maintain at its address referred to in Section 12.2 a copy of each Assignment and Acceptance delivered to it and a register ~~on which it enters~~ (the ~~name~~"Register") for the -------- recordation of the names and addresses of the Lenders and the Commitment of, ~~address~~ and ~~interest~~ principal amount of the Loans owing to, each Lender from time to time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Company, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loan and any Note evidencing such Loan recorded therein for all purposes of this ~~Agreement~~ 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 (and each Note shall expressly so provide). Any assignment or transfer of all ~~Participants. Each Noteholder~~ or part of a Loan evidenced by a Note shall ~~refuse to register any~~ be registered on the Register only upon surrender for registration of assignment or transfer of ~~any participation in violation of~~ the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth~~ more new Notes in the ~~Note~~same aggregate principal amount shall be issued to the designated Assignee and the old Notes shall be returned by the Administrative Agent to the Company marked "canceled". If The Register shall be available for inspection by the Company or any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERLender at any reasonable time and from time to time upon reasonable prior notice. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person under common management with such Lender, by the Company, the Administrative Agent and the Syndication Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (except that (i) such fee shall be payable by the Company, in the event of any assignment made at the request of the Company pursuant to Section 3.17 and (ii) no such registration and processing fee shall be payable in the case of an Assignee which is an affiliate of the assigning Lender), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register. On or prior to such effective date, the Company, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Notes, as the case may be, to 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 Acceptance and, if the 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 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 Notes shall be dated the Restatement Effective Date and shall otherwise be in the form of the Note replaced thereby. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to (i) any Federal Reserve Bank in accordance with ~~Applicable Law.~~ applicable law or (eii) ~~The Notes have not been registered under~~ the ~~United States Securities Act~~ Trustee with respect to a pool of ~~1933, as amended (~~collateralized loan obligations which includes the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of obligations owing to such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST FacilityLender hereunder. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ any Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an ------------- "SPC") of such Granting Bank, identified as such in writing from time to time by --- the Granting Bank to the Administrative Agent and the Company, the option to provide to the Borrowers all or any part of any Loan that such Granting Bank would otherwise be obligated to make to the Borrowers pursuant to Section ~~8.6(b), any~~ 2.2 or 2.4; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing contained shall constitute a commitment by any -------- SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) ~~shall require the consent~~ if an SPC elects not to exercise such option or ~~approval of the majority of Noteholders (by Outstanding Principal as of the date~~ otherwise fails to provide all or any part of such ~~determination); provided that~~ Loan, the ~~unanimous consent of all Noteholders~~ Granting Bank shall be ~~required with respect~~ obligated to ~~any~~ make such ~~waiver, amendment, modification, supplement, restatement or other revision~~ Loan pursuant to ~~this Agreement or any other Secured Note Document that is~~ the terms hereof. The making of a ~~UST Non-Binding Amendment. (h) The Issuer~~ Loan by an SPC hereunder shall be deemed to ~~have satisfied its obligation~~ utilize the Commitments of all Lenders to ~~provide~~ the same extent, and as if, such Loan were made by the Granting Bank. Each party hereto hereby agrees that no SPC shall be liable for any ~~Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided~~ payment under this Agreement ~~or any other Secured Note Document~~for which a Lender would otherwise be liable for so long as, ~~by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website~~ and to the extent that, the related Granting Bank makes such ~~action does not conflict with the terms of this Agreement or Applicable Law~~payment. In ~~connection with providing access~~ furtherance of the foregoing, each party hereto hereby agrees that, prior to the ~~Issuer’s internet website~~date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization arrangement, insolvency or liquidation proceedings or similar proceedings under the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence laws of ~~ownership and acceptance of a disclaimer~~the United States or any state thereof.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Exide Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrowers, the Lenders, the 106 Administrative Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that ~~the Issuer~~ neither Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of each U.S. Lender or Canadian Lender, as the ~~Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder~~ case may ~~assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~be. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of ~~the Issuer~~either Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~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 ~~or a portion of its~~ purposes under this Agreement and the other Loan Documents, and the relevant Borrower and the relevant Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement ~~(including~~ and the other Loan Documents. In no event shall any Participant under any such participation have any 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: reduce the principal of, or interest on, the Loans or any fees payable hereunder; postpone the date of the final maturity of the Loans, the scheduled date of amortization of any Term Loan or the scheduled date of any payment of interest on the Loans; release all or ~~a portion~~ substantially all of the ~~Notes~~ Collateral; release all or substantially all of the Guarantors from their obligations under the Guarantee and Collateral Agreements; or increase the amount or extend the expiration date of any Lender's Revolving Commitment, in each case described in this sentence to the extent subject to such participation. 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 fully as if it were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.25, 2.26 and 2.27 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; PROVIDED that, in the case of Section 2.26, such Participant shall have complied with the requirements of such 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. (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, with the ~~time owing~~ consent of the relevant Borrower and the relevant Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to itan additional bank, financial institution or other entity (an "ASSIGNEE") all or any part of its rights and 107 obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ relevant Administrative Agent for its ~~records~~acceptance and recording in the Register; PROVIDED that, ~~together with~~ unless otherwise agreed by the relevant Borrower and the relevant Administrative Agent, no such assignment to an Assignee (other than any ~~related~~ Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $2,000,000 (or the Canadian Dollar Equivalent thereof), in each case 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, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of this Section, the consent of either Borrower shall not be required for any ~~state~~ assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of either Borrower or either Administrative Agent any or all of the ~~United States; provided that~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) Each Administrative Agent shall, on behalf of the relevant Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (~~“Register”~~the "REGISTER") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ relevant Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ relevant Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and each Borrower, each other Loan Party, 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the ~~restrictions set forth in~~ designated Assignee. (e) Upon its receipt of (x) an Assignment and Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~8.6(e~~10.6(c), (y) or an administrative questionnaire if the ~~restrictions set forth in the Note. The Issuer shall enter into~~ Assignee is not an existing Lender, and (z) such ~~amendments~~ forms, certificates or other ~~modifications~~ evidence, if any, with respect to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the U.S. federal withholding tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”2.26(d), ~~OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE~~ together with payment to the relevant Administrative Agent of a registration and processing fee of $3,500 (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) no such ~~Noteholder’s obligations under this Agreement~~ processing fee shall ~~remain unchanged, (B) such Noteholder shall remain solely responsible to~~ be payable if the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in Assignee is a ~~Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers~~ Lender Affiliate of the ~~Note, would trigger registration requirements under~~ Assignor within the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification definition of clause (a) or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of ~~this Section 8.6; provided, that~~ the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event 108 definition of ~~Default shall have occurred and be continuing. To the extent permitted by law~~Lender Affiliate, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) ~~TO THE ISSUER OR ITS SUBSIDIARIES AND~~only one such fee shall be required in connection with a simultaneous assignment to Lender Affiliates of the Assignee within the definition of clause (c) of the definition of Lender Affiliate), IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERsuch 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. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Each Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report~~Each Borrower, ~~notice, financial statement~~ each Lender and each Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; PROVIDED, ~~notice~~HOWEVER, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 1 contract

Samples: Credit Agreement (International Multifoods Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Agents and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder~~ each Lender (and any ~~attempted~~ purported such assignment or transfer by the ~~Issuer~~ Borrower without such consent of each Lender shall be null and void~~) and no Noteholder may assign~~ ), unless such assignment or ~~otherwise~~ transfer ~~its rights or obligations hereunder except in accordance with this Section 8.6~~is from one Borrower to another Borrower. (b) Any ~~Noteholder~~ Lender may, ~~without the consent of the Issuer~~in accordance with applicable Law, ~~assign or transfer~~ at any time sell to one or more ~~assignees that is~~ banks, financial institutions or other entities (individually a ~~Permitted Transferee (each~~“Participant” and, an collectively, the “~~Assignee~~Participants”) ~~all~~ (so long as no Default or Event of Default has occurred and is continuing, only to a ~~portion~~ Person other than an Ineligible Transferee) participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Commitment of ~~its rights~~ such Lender or any other interest of such Lender hereunder and under the other Loan Documents (a “Participation”). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan, ~~(C)~~ Reimbursement Obligation or other interest for all purposes under this Agreement and the ~~Issuer~~ other Loan Documents, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment to 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 reduce the principal of, or the stated rate of interest on, the Loans, Reimbursement Obligation or any fees payable to the Lender hereunder, or postpone the date of the final maturity of the Loans or Reimbursement Obligations, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid during an Event of Default, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable Law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 11.8(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits ~~of Section 2.12~~of, and ~~2.13~~ bound by the obligations imposed on the Lenders in, Sections 4.10, 4.11, and 4.14 with respect to its participation in the ~~same extent~~ Commitments and the Revolving Credit Loans and other Extensions of Credit outstanding from time-to- time as if it were a ~~Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6~~Lender; ~~provided~~provided that, ~~that the Noteholders and all Participants~~ a Participant shall not be entitled to receive no any greater ~~amount~~ payment in the ~~aggregate pursuant to such~~ case of Sections 4.10, 4.11, and 4.14 than the ~~Noteholder~~ applicable Lender would have been entitled to receive ~~had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject~~ with respect to the ~~terms~~ Participation sold to such Participant, unless the sale of ~~this Section 8.6(c)~~the Participation is made with the Borrower’s prior written consent expressly acknowledging such Participant may receive a greater benefit; provided, ~~each~~ further, that, a Participant ~~also~~ that would be a Non-Exempt Lender if it were a Lender shall not be entitled to the benefits of Section ~~8.7~~ 4.11 to the extent such Participant fails to comply with Section 4.11(e) as though it were a Lender. (c) Any Lender may, in accordance with applicable Law, at any time and from time-to-time assign to any Lender or any Affiliate or Approved Fund thereof, or, with the ~~Noteholder~~consent of the Administrative Agent, the Issuing Lenders and, so long as no Default or Event of Default has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed), to any other Person (the “Assignee”), all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such assigning Lenders (and, in the case of an Assignee that is not then a Lender or any Affiliate or Approved Fund thereof, by the Administrative Agent, the Issuing Lenders, and, so long as no Default or Event of Default has occurred and is continuing, the Borrower) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) each such assignment to an Assignee (other than any Lender) shall be in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (other than in the case of (a) an assignment of all of a Lender’s interests under this Agreement or (b) an assignment to an Affiliate or Approved Fund of such assigning Lender), unless otherwise agreed by the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrower (such amount to be aggregated in respect of assignments by to any Lender and the Affiliates or Approved Funds thereof), (ii) in the case of an assignment by a Lender to a Bank CLO managed by such Lender or an Affiliate of such Lender, unless such assignment to such Bank CLO has been consented to by the Administrative Agent, the Issuing Lenders and the Borrower (such consent not to be unreasonably withheld or delayed), the assigning Lender shall retain the sole right to approve any amendment, waiver or other modification of this Agreement or any other Loan Document; provided that, the Assignment and Acceptance between such Lender and such Bank CLO may provide that such Lender will not, without the consent of such Bank CLO, agree to any amendment, modification or waiver that requires the consent of each Lender directly affected thereby pursuant to Section 11.1, and (iii) each Assignee shall comply with the provisions of Section 4.11(c), (iv) so long as no Default or Event of Default has occurred and is continuing, no such assignment shall be made to an Ineligible Transferee. In Upon such execution, delivery, acceptance and recording, from and after the ~~event that~~ effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a ~~Noteholder sells a participation~~ party hereto and, to the extent provided in such ~~Noteholder~~Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Commitments as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this Section 11.7, the consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrower, for any assignment which occurs at any time when any of the events described in Section 9.1(f) shall have occurred and be continuing. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 11.7 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 clause (b) of this Section 11.7. (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrower, shall maintain at the address of the Administrative Agent referred to in Section 11.2 a copy of each Assignment and Acceptance delivered to it and a record of each Participation and a register ~~on which it enters~~ (the ~~name~~“Register”) for the recordation of the names and addresses of the Lenders (including all Assignees, ~~address~~ successors and ~~interest~~ Participants) and the Commitments of, and principal amounts of the Loans and other Obligations 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, the Administrative Agent and the Lenders 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 owner thereof for all purposes of this Agreement ~~of all Participants~~and the other Loan Documents, notwithstanding any notice to the contrary. ~~Each Noteholder shall refuse to register any transfer~~ Any assignment of any ~~participation in violation of the foregoing restrictions~~Loan or other obligation hereunder, ~~the restrictions set forth in Section 8.6(e)~~ whether or ~~the restrictions set forth~~ not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Note~~Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time-to-time upon reasonable prior notice. If any ~~such participation is~~ Lender sells a Participation as described in ~~certificated form~~Section 11.7(b), it shall ~~bear~~ provide to the ~~following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933~~Administrative Agent or maintain the information described in this paragraph (solely as a non-fiduciary agent of the Borrower solely for tax purposes) and permit the Administrative Agent and the Borrower to review such information as reasonably needed for the Administrative Agent and the Borrower, ~~AS AMENDED (THE “SECURITIES ACT”)~~as applicable, OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERto comply with their obligations under this Agreement or under any applicable Law or governmental regulation or procedure. (de) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender, by the Administrative Agent, the Issuing Lenders and, so long as no Default or Event of Default has occurred and is continuing, the Borrower), together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $3,500 (other than in the case of an assignment to a Lender or an Affiliate of a Lender or any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank), the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the applicable Register and give notice of such acceptance and recordation to the Lenders and the Borrower. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and, so long as no Default or Event of Default has occurred and is continuing, only to a Person other than an Ineligible Transferee and only with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed) any prospective Transferee in each case, any and all financial information in such Lender’s possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement; provided that such Transferee shall have agreed to be bound by the provisions of Section 11.15 hereof. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 11.7 concerning assignments of Loans and other Extensions of Credit and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, (i) any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act applicable Law and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any ~~advice, consent, vote, action, direction~~ pledge or ~~other matter~~ assignment by a Lender which is a fund to ~~be taken, not taken or determined under this Agreement or any other Secured Note Document by~~ its trustee for the ~~Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date~~ benefit of such ~~determination)~~trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that ~~the unanimous consent~~ no such pledge or assignment of ~~all Noteholders~~ a security interest shall ~~be required with respect to~~ release a Lender from any of its obligations hereunder or substitute any such ~~waiver, amendment, modification, supplement, restatement~~ pledgee or ~~other revision to this Agreement or any other Secured Note Document that is~~ assignee for such Lender as a ~~UST Non-Binding Amendment~~party hereto. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide~~ Notwithstanding the foregoing, any ~~Noteholder (other than~~ Lender may, with notice to, but without consent of, the ~~Initial Noteholder)~~ Borrower and the Administrative Agent, and in accordance with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the ~~extent such action does not conflict with~~ definition of “Conduit Lender” set forth in Section 1.1 hereof and the terms of this ~~Agreement~~ Section 11.7(h), designate a Conduit Lender and fund any of the Loans or ~~Applicable Law~~Unreimbursed Amounts which such Lender is obligated to make or pay hereunder by causing such Conduit Lender to fund such Loans or Unreimbursed Amounts on behalf of such Lender. Any Conduit Lender may assign any or all of the Loans or Unreimbursed Amounts it may have funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent and without regard to the limitations set forth in Section 11.7(c). The Borrower, each Lender and each 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, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar Law in connection with any obligation of such Conduit Lender under the Loan Documents, for one year and one day after the payment in full of 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 expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. In ~~connection~~ addition, notwithstanding the foregoing, any Conduit Lender may (i) with ~~providing access to~~ notice to, but without the ~~Issuer’s internet website~~prior written consent of, the ~~Issuer~~ Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans or Reimbursement Obligations to any financial institutions (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such Conduit Lender to support the funding or maintenance of Loans or Reimbursement Obligations by such Conduit Lender and (ii) disclose on a confidential basis any non-public information relating to its Loans and its Reimbursement Obligations to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such Conduit Lender. This clause (h) may ~~take reasonable measures to ensure that only then current Noteholders may access such information including,~~ not be amended without ~~limitation, requiring registration, a confidentiality agreement, evidence~~ the written consent of ~~ownership and acceptance of a disclaimer~~any Conduit Lender directly affected thereby.

Appears in 1 contract

Samples: Credit Agreement (Buckeye Partners, L.P.)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender and (~~and any attempted assignment or transfer by the Issuer without such consent shall be null and void~~ii) ~~and~~ no ~~Noteholder~~ Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this ~~Section 8.6~~Agreement. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or other entities, in each case other than to any entity that such Lender has knowledge is a ~~Permitted Transferee~~ 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 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 any amendment, waiver or consent that would require the consent of all Lenders pursuant to Section 10.1 without the consent of such Participant. The Borrower agrees that 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 fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of, and subject to the requirements of, Sections 2.19, 2.20, 2.21 and 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 2.20, 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. . Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the 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 and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, in each case other than to an entity that such Lender has knowledge is a competitor (or an affiliate of a known competitor) of the Borrower or any Founding Member or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed (it being understood that the Borrower shall have the right to waive its consent rights hereunder by notice to the Administrative Agent) (provided that no such consent need be obtained by any Barclays Entity for a period of 60 days following the Closing Date)), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes~~ Acceptance, substantially in the form of Exhibit E (an ~~agreement by the assignee thereunder to be bound by the terms~~ “Assignment and ~~provisions of the Intercreditor Agreement~~Acceptance”), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~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 $1,000,000 in the case of the assignment of any Term Loans or $5,000,000 in the case of the assignment of any Revolving Credit Commitments (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~together with~~ unless otherwise agreed by the Borrower and the Administrative Agent and (ii) no such assignment of any ~~related~~ Revolving Credit Commitment shall be made to any holder of any 2014 Revolving Credit Loan without the consent of the Borrower in its sole and absolute discretion. 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and 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 Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 Section 2.19, 2.20, 2.23 and 10.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective date). Notwithstanding any provision of this Section, (i) the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 7 Business Days after having received notice thereof. For purposes of the minimum assignment amounts set forth in ~~no event may any transfer~~ this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated. (d) The Administrative Agent shall, acting solely for this purpose as an agent on behalf of the Borrower, maintain at its address referred to in Section 10.2 a ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 (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 Acceptance; thereupon, if requested by the designated Assignee, one or more new Notes in the same aggregate principal amount shall be issued to such designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ 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 Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation of the foregoing restrictions~~other Person is required by Section 10.6(b), ~~the restrictions set forth in Section 8.6(e~~by each such other Person) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost together with payment to the ~~Issuer~~ Administrative Agent of ~~maintaining the Notes. If there is~~ a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more ~~than one Noteholder, the Issuer~~ Related Funds as a single assignment) (except that no such registration and processing fee shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to a Barclays 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), the Administrative Agent shall (i) promptly accept such Assignment and 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 and upon receipt by the Borrower of the old Notes (if any) for cancellation, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to 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 ~~this Section 8.6(b)~~ such Assignment and 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 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 ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERRestatement Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act~~ applicable law; provided that no such pledge or assignment of ~~1933,~~ a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as ~~amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilityparty hereto. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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 ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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(f), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In addition to the consent requirements set forth in Section 10.1, this paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such ~~waiver,~~ proposed amendment~~, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment~~. (h) ~~The Issuer shall be deemed~~ Notwithstanding the foregoing or anything to ~~have satisfied~~ the contrary set forth herein, any Lender may, at any time, without any consent, assign all or a portion of its ~~obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided~~ rights and obligations under this Agreement (including Loans or ~~any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website~~ Commitments) to the ~~extent such action does not conflict~~ Borrower in accordance with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, Section 2.11(c) on a ~~confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~non-pro rata basis.

Appears in 1 contract

Samples: Credit Agreement (National CineMedia, LLC)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This ------------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an “Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.20, 2.21 and 2.22 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (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, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of -------- its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and,~~ recording in ~~each case, in accordance with any applicable securities laws of any state of~~ the ~~United States~~Register; provided that, unless otherwise agreed by the -------- ---- Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in ~~no event may any transfer~~ an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a ~~Note~~ Lender's interests under this Agreement. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be ~~made~~ aggregated in respect of each Lender and its Lender Affiliates, if any. Any such ~~transfer~~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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or ~~such transfer together with~~ the Administrative Agent any ~~prior transfers~~or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, ~~would trigger registration requirements under~~ on behalf of the ~~Exchange Act. The Issuer or~~ Borrower, maintain at its ~~agent will maintain~~ address referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the -------- recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 10.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$1,000, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 10.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~Section 8.1, if there is more than one Noteholder pursuant~~ issue Notes to ~~Section 8.6(b),~~ any ~~(i) waiver, amendment, modification, supplement, restatement or other revision~~ Lender requiring Notes to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval facilitate transactions of the ~~majority of Noteholders~~ type described in paragraph (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentf) above. (h) ~~The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than~~ Each of Holdings, the ~~Initial Noteholder) with any report~~Borrower, ~~notice, financial statement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other information required to be provided under this Agreement or~~ join any other ~~Secured Note Document~~Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by ~~making~~ such ~~report~~Conduit Lender; provided, ~~notice~~however, ~~financial statement~~ 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 information available by electronic media, bulletin board service or internet website~~ expense arising out of its inability to ~~the extent~~ institute such ~~action does not conflict with the terms~~ a proceeding against such Conduit Lender during such period of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerforbearance.

Appears in 1 contract

Samples: Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Notes and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ordinary course of its commercial banking business and in accordance with applicable law, at any time sell to one or more banks or other entities (“Participants”) participating interests in any Loan owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest hereunder and under 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 Note for all purposes under this Agreement and the other Loan Documents, the Borrower and the 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 and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to the Loans and other obligations owing to such Lender and to approve any amendment, modification, or waiver of any provision of this Agreement (other than amendments, modifications, or waivers (i) decreasing the amount of principal of or the rate at which interest is payable on such Loans or Notes, (ii) extending any scheduled principal payment date or date fixed for the payment of interest on such Loans or Notes, (iii) extending its Commitment or (iv) permitting any assignment or transfer of any of the Borrower’s rights or obligations under this Agreement). The Borrower agrees that if amounts outstanding under this Agreement and the Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall 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 or any Note; provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Section 2.14, Section 2.15 and Section 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a Lender; provided that, in the case of Section 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. (c) Any Lender, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time may assign to any Lender or any affiliate or Approved Fund thereof with the consent of the ~~Issuer~~Administrative Agent, ~~assign~~ or, with the consent of the Borrower (so long as no Event of Default shall have occurred which is continuing) and the Administrative Agent (which consent, in the case of either the Borrower or ~~transfer~~ the Administrative Agent, shall not be unreasonably withheld), to ~~one~~ an additional bank or ~~more assignees that is a Permitted Transferee~~ financial institution (~~each,~~ an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement and the Notes pursuant to a “Assignment and Assumption Agreement”, substantially in the form of Exhibit D, executed by such Assignee, such assigning Lender 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 and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (~~including~~ i) any such assignment must be in a minimum amount equal to the lesser of (x) $1,000,000 and (y) the aggregate Commitments and outstanding Loans of such Lender then in effect, and (ii) after giving effect to any such assignment, such Lender shall have either (x) sold all its rights and obligations hereunder and under the Notes or ~~a portion~~ (y) retained at least $1,000,000 of the ~~Notes at~~ aggregate Commitments. Upon such execution, delivery, acceptance and recording, from and after the ~~time owing to it)~~ effective date determined pursuant to such Assignment and Assumption Agreement, (1) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption Agreement, have the rights and obligations of a Lender hereunder with a Commitment or Commitments as set forth therein and (2) the assigning Lender thereunder, to the extent provided in such Assignment and Assumption Agreement, shall be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Agreement covering all or ~~similar agreement which includes~~ the remaining portion of an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related assigning Lender’s rights and obligations ~~thereunder and~~under this Agreement, ~~in each case, in accordance with any applicable securities laws of any state of the United States~~such assigning Lender shall cease to be a party hereto; provided ~~that~~that the provisions of Section 2.14, Section 2.15, Section 2.16 and Section 9.5 shall continue to benefit such assigning Lender to the extent required by such Sections). (d) The Administrative Agent shall maintain, at its address referred to in ~~no event may any transfer~~ Section 9.2, a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Assumption Agreement delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of ~~the Noteholders and~~ any Assignees and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by each Noteholder and each Assignee~~ Loans owing to, any Assignees from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower and the Administrative Agent may treat each Person whose name is recorded in the Register as the owner of the Loan recorded therein for all purposes of this Agreement. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower at any reasonable time and from time to ~~register~~ time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption Agreement executed by the assigning Lender, 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 ) and the Borrower together with payment by the assigning Lender or by the Assignee to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall promptly accept such Assignment and Assumption Agreement and, on the effective date determined pursuant thereto, shall record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. (f) Notwithstanding anything to the contrary contained herein, any ~~transfer~~ Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (a “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 ~~Note in violation of~~ Loan that such Granting Lender would otherwise be obligated to make to the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications~~ Borrower pursuant to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such AssigneesAgreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any advance hereunder, (ii) if an SPC elects not to exercise such ~~amendments~~ option or ~~modifications do not materially increase~~ otherwise fails to provide all or any part of such Loan, the ~~tax cost~~ Granting Lender shall be obligated to make such Loan pursuant to the ~~Issuer~~ terms hereof. The making of ~~maintaining~~ a Loan by an SPC hereunder shall utilize the ~~Notes~~applicable Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. ~~If there~~ 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 ~~more than~~ one ~~Noteholder~~year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.6(f), any SPC may (i) with notice to, but without the prior written consent of, the ~~Issuer shall provide all information~~ Borrower and ~~documents delivered hereunder to~~ the ~~Initial Noteholder to~~ Administrative Agent and without paying any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933processing fee therefor, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such ~~Noteholder’s rights~~ SPC to support the funding or maintenance of Loans and ~~obligations under~~ (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This section may not be amended without the written consent of the SPC. (g) The Borrower authorizes the Lenders to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee, any and all financial information in the Lenders’ possession concerning the Borrower and its respective Affiliates which has been delivered to the Administrative Agent or the Lenders by or on behalf of the Borrower pursuant to this Agreement ~~(including all~~ or ~~a portion~~ which has been delivered to the Administrative Agent or the Lenders by or on behalf of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrower in connection with ~~such Noteholder~~the Lender’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers credit evaluation of the ~~Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant~~ Borrower and its respective Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to ~~enforce this Agreement and to approve any amendment, modification or waiver of any provision of~~ this Agreement; provided that each such ~~agreement may provide that such Noteholder will not, without~~ Transferee and prospective Transferee agrees in writing to be bound by the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits provisions of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER9.8. (dh) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not Nothing herein shall prohibit ~~assignments creating security interests in Notes, including, without limitation,~~ any ~~pledge~~ Lender from pledging or ~~assignment by a Noteholder of~~ assigning any Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Northwestern Corp)

Appears in 1 contract

Samples: Credit Agreement (Fpa Medical Management Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, the Collateral Agent and all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that (i) the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender and (~~and any attempted assignment or transfer by the Issuer without such consent shall be null and void~~ii) ~~and~~ no ~~Noteholder~~ Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this ~~Section 8.6~~Agreement. (ba) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks, financial institutions or other 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 ~~Permitted Transferee~~ 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 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 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 any amendment, waiver or consent that would require the consent of all Lenders pursuant to Section 10.1 without the consent of such Participant. The Borrower agrees that 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 fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of, and subject to the requirements of, Sections 2.19, 2.20, 2.21 and 2.23 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 2.20, 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 payment results from a Change in 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, maintain a register on which it enters the name and address of each Participant and the principal amounts of (and stated 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 (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations 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. (b) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any Affiliate, Related Fund or Control Investment Affiliate thereof, in each case other than to any Disqualified Institution, a Defaulting Lender, a natural person or an entity that such Lender has knowledge is a is a competitor (or an affiliate of a known competitor) of the Borrower or any Founding Member or, with the consent of the Borrower and the Administrative Agent (it being understood that the Borrower shall have the right to waive its consent rights hereunder by notice to the Administrative Agent)), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption~~ Acceptance, substantially in the form of Exhibit F or ~~similar agreement which includes an agreement~~ any other form (including electronic records generated by the ~~assignee thereunder to be bound~~ use of an electronic Platform) approved by the ~~terms~~ Administrative Agent and ~~provisions of~~ the ~~Intercreditor Agreement~~Required Lenders (an “Assignment and Acceptance”), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower or the Administrative Agent is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~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 the assignment of any Revolving Credit Commitments (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~together with any related~~ unless otherwise agreed by the Borrower and the Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Revolving Credit Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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 Section 2.19, 2.20, 2.23 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this Section, (i) the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing, and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 (other than with respect to Disqualified Lenders), whether or not such assignment or transfer is reflected in the Register, shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with ~~any applicable securities laws~~ paragraph (b) of ~~any state~~ this Section 10.6. (c) The Administrative Agent shall, acting solely for this purpose as an agent on behalf of the ~~United States; provided that~~Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Revolving Credit Commitment of, and principal amount of the ~~Notes~~ (and stated interest ~~thereon~~on) ~~held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 Acceptance; thereupon, if requested by the designated Assignee, one or more new Notes in the same aggregate principal amount shall be issued to such designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (d) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note~~ other Person is required by Section 10.6(b), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (which registration and processing fee may only be waived or reduced in ~~violation~~ the sole discretion of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e~~Administrative Agent) ~~or the restrictions set forth in the Note. The Issuer~~ (except that no such registration and processing fee shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(bbe payable (y) in connection with an assignment by or to the Administrative Agent or (z) in the case of an Assignee which is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and 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 and upon receipt by the Borrower of the old Notes (if any) for cancellation, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note of the assigning Lender) a new Revolving Credit Note to such Assignee in an amount equal to the Revolving Credit Commitment assumed or acquired by it pursuant to ~~this Section 8.6(b)~~ such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment, upon request, a new Revolving Credit Note to the Assignor in an amount equal to the Revolving Credit Commitment, retained by it hereunder. Such new Note or Notes shall ~~bear~~ be dated the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERClosing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (de) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act~~ applicable law; provided that no such pledge or assignment of ~~1933,~~ a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as ~~amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefromparty hereto. (f) Notwithstanding ~~Section 8.6(a~~anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), ~~8.6(b)~~identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, ~~8.6(c) and 8.6(e), if at~~ the option to provide to the Borrower all or any ~~time~~ part of any Loan that such Granting Lender would otherwise be obligated to make to the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder Borrower pursuant to ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) ~~shall require the consent~~ if an SPC elects not to exercise such option or ~~approval of the majority of Noteholders (by Outstanding Principal as of the date~~ otherwise fails to provide all or any part of such ~~determination); provided that~~ Loan, the ~~unanimous consent of all Noteholders~~ Granting Lender shall be ~~required with respect~~ obligated to ~~any~~ make such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website Loan pursuant to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.terms

Appears in 1 contract

Samples: Revolving Credit Agreement (National CineMedia, Inc.)

Appears in 1 contract

Samples: Credit and Security Agreement (Sanmina-Sci Corp)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Issuing Banks, the Administrative Agent, the Arrangers, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of ~~its~~ their rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable Law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) participating interests in ~~all or a portion~~ any Loan owing to such Lender, any Commitment of such ~~Noteholder~~Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds or (ii) a natural person. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s ~~rights and~~ obligations under this Agreement ~~(including all or a portion of~~ to the ~~Notes owing~~ other parties to ~~it); provided that (A) such Noteholder’s obligations under~~ this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations~~Loan for all purposes under this Agreement and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 9. 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~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 2.14 as fully as if such Participant were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of ~~Section 2.12~~Sections 2.15, ~~and 2.13~~ 2.16 or 2.17 (subject to the ~~same extent~~ requirements and limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) and (g) (it being agreed that any required forms shall be provided solely to the participating Lender)) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it such Participant were a ~~Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6~~Lender; ~~provided,~~ provided that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred~~ occurred, except to the extent that entitlement to a greater amount results from a Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer ~~occurs while~~ was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal and interest amounts of each Participant’s interest in the Loans 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 the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of a Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. (a) Any Lender (an “Assignor”) may, in accordance with applicable Law and the written consent of the Administrative Agent and each Issuing Bank (which shall not be unreasonably withheld or delayed) and, so long as no Event of Default ~~shall have~~ under Section 7.1(a)(1), (7) or (8) has occurred and is continuing, the Borrower, at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, or 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 Acceptance executed by such Assignee and such Assignor and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be ~~continuing. To the extent permitted by law, and~~ subject to the ~~terms~~ above described consents; provided, further, that no assignment to an Assignee (other than any Lender or any affiliate thereof) of ~~this Section 8.6(c), each Participant also~~ Commitments shall be ~~entitled~~ in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Revolving Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall retain any Commitment) shall have a Commitment of at least $5,000,000 unless otherwise agreed by the Administrative Agent and the Borrower; provided, however, no Lender shall be permitted to assign all or any part of its rights and obligations under this Agreement to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) the Borrower or any of its Subsidiaries or (iii) any natural person. Upon such execution, delivery, acceptance and recording in the Register, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the ~~benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder~~Assignment and 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 of the interest assigned in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such ~~Noteholder~~Assignor shall cease to be a party hereto, ~~on behalf of Issuer~~except as to Sections 2.16, ~~shall maintain a register on which it enters the name, address~~ 2.17 and ~~interest~~ 9.5 in ~~this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation~~ respect of the ~~foregoing restrictions,~~ period prior to such effective date). For purposes of the ~~restrictions~~ minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. (b) [Reserved]. (c) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~8.6(e~~9.6(c), by each such other Person) or together with payment to the ~~restrictions set forth~~ Administrative Agent of a registration and processing fee of $3,500 (provided, however, that (i) Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the ~~Note. If~~ case of any assignment and (ii) no such ~~participation~~ fee shall be required to be paid in the case of an Assignee which is ~~in certificated form~~already a Lender or any affiliate, ~~it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”~~Related Fund or Control Investment Affiliate thereof), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY the Administrative Agent shall (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR promptly accept such Assignment and Acceptance and (B) ~~TO THE ISSUER OR ITS SUBSIDIARIES AND~~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, ~~IN EACH CASE~~the Borrower, ~~IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER~~at its own expense, ~~OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS~~upon request, ~~WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934~~shall execute and deliver to the Administrative Agent (in exchange for the applicable Loan Notes of the assigning Lender) a new Loan Note to such Assignee in an amount equal to the Commitment assumed or acquired by it pursuant to such Assignment and Acceptance and, ~~AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER~~if the Assignor has retained a Commitment, upon request, a new Loan Note to the Assignor in an amount equal to the Commitment retained by it hereunder. Such new Loan Note or Loan Notes shall otherwise be in the form of the Loan Note or Loan Notes replaced thereby. (d) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 9.6 concerning assignments of Loans and Loan Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Loan Notes, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Loan Note to any Federal Reserve Bank in accordance with ~~Applicable~~ applicable Law. (e) ~~The Notes have not been registered under~~ Notwithstanding anything to the ~~United States Securities Act of 1933~~contrary contained herein, ~~as amended~~ any Lender (~~the~~ a “~~Securities Act~~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 ~~state securities laws, and, accordingly, may not~~ part of any Loan that such Granting Lender would otherwise be ~~offered or sold except as set forth in~~ obligated to make to the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder Borrower pursuant to ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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. Each party hereto also agrees that each SPC shall be entitled to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and limitations of such ~~determination~~Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) and (g) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its granted interest in the Commitments and the Loans outstanding from time to time as if such SPC were a Lender; provided that no SPC shall be entitled to receive any greater amount pursuant to any such Section than the ~~unanimous~~ Granting Lender would have been entitled to receive in respect of the amount of the interest granted by such Granting Lender to such SPC had no such grant occurred, except to the extent that entitlement to a greater amount results from a change in Law that occurs after such interest was granted, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). In addition, notwithstanding anything to the contrary in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of ~~all Noteholders~~ the Borrower and the Administrative Agent (which consent shall not be ~~required~~ unreasonably withheld) and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower or its Affiliates may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This Section 9.6(g) may not be amended without the written consent of any SPC with Commitments outstanding at the time of such ~~waiver,~~ proposed amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to . To the extent ~~such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website~~an SPC provides a Loan, the ~~Issuer~~ applicable Granting Lender may ~~take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration,~~ maintain a ~~confidentiality agreement, evidence~~ register on behalf of ~~ownership~~ the Borrower and ~~acceptance of a disclaimer~~the SPC’s interest must be entered in the register.

Appears in 1 contract

Samples: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Arrangers, the Agents, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and assigns permitted hereby, except that neither Holdings nor the ~~Issuer~~ Borrower may ~~not~~ assign or ~~otherwise~~ transfer any of ~~its~~ their respective rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 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 a Lender; provided that, in the case of Section 2.20, such Participant shall have complied with the requirements of Section 2.20(e); and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to (i) an Arranger and its affiliates, (ii) any Lender or any Lender Affiliate or Affiliated Fund of the assigning Lender or another Lender thereof (in the case of (i) and (ii), each, an “Eligible Assignee”), or (iii) with the consent of (x) the Administrative Agent, (y) in the case of an assignment of all or any portion of a Revolving Credit Commitment or a Revolving Credit Loan, each Issuing Lender, and (z) if no Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes~~ Acceptance, substantially in the form of Exhibit D (an ~~agreement by the assignee thereunder to be bound by the terms~~ “Assignment and ~~provisions of the Intercreditor Agreement~~Acceptance”), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, each Issuing Lender or the Administrative Agent is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records,~~ acceptance and recording in the Register together with a processing and recordation fee of $3,500; provided that no such assignment to an Assignee (other than any ~~related rights~~ Lender or any Lender Affiliate thereof or Affiliated Fund of any Lender) shall be in an aggregate principal amount of less than $1,000,000 (with respect to Term Loans and ~~obligations thereunder and~~Term Loan Commitments and $2,500,000 with respect to all other Loans and Commitments (other than, in each case, in ~~accordance~~ 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. 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with ~~any applicable securities laws~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of ~~any state~~ an Assignment and 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 Section 2.19, 2.20, 2.21, 9.12 and 10.5 in respect of the ~~United States; provided that~~period prior to such effective 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. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 (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 Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee (if requested by such Assignee), and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The ~~Issuer~~ Register shall ~~refuse~~ be available for inspection by the Borrower or any Lender (with respect to ~~register~~ any ~~transfer~~ 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 Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any ~~Note in violation~~ other Person is required by Section 10.6(c), by each such other Person) together with any tax forms required under Section 2.20 and payment to the Administrative Agent of ~~the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth~~ a registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the ~~Note. The Issuer shall enter into such amendments~~ case of an Assignee which is already a Lender or ~~other modifications~~ is a Lender Affiliate or an Affiliated Fund (and in the case of assignments on the same day from a Lender to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one ~~Noteholder,~~ fund managed or advised by the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED same investment advisor (~~THE “SECURITIES ACT”~~which funds are not then Lenders hereunder), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”only a single $3,500 registration and processing fee shall be payable for all such assignments by such Lender to such funds)), IFthe Administrative Agent shall (i) promptly accept such Assignment and 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, ~~IN THE CASE OF~~ the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (2in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) ~~PRIOR TO SUCH TRANSFER~~a new Revolving Credit Note and/or applicable Term Notes, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES ANDas the case may be, ~~IN EACH CASE~~such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, ~~IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER~~as the case may be, ~~OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS~~assumed or acquired by it pursuant to such Assignment and Acceptance and, ~~WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934~~if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, ~~AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER~~as the case may be, upon request, a new Revolving Credit Note or Term Note, as the case may be, the Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (df) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The~~ applicable law, provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or the Administrative Agent, assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes ~~have not been registered~~ or any other instrument evidencing its rights as a Lender under ~~the United States Securities Act of 1933~~this Agreement, ~~as amended (the “Securities Act”)~~to any holder of, trustee for, or any ~~state~~ other representative of holders of, obligations owed or securities ~~laws~~issued, ~~and, accordingly, may not~~ by such fund as security for such obligations or securities; provided that any foreclosure or similar action by such trustee or representative shall be ~~offered or sold except as set forth in~~ subject to the ~~following sentence. The Notes were originally issued in a transaction exempt from registration under section 5~~ provisions of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding this Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility10.6 concerning assignments. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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 ~~Section 8.6(b), any~~ this Agreement; provided that (i) ~~waiver, amendment, modification, supplement, restatement or other revision~~ nothing herein shall constitute a commitment by any SPC to ~~this Agreement or~~ make any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall ~~require~~ be obligated to make such Loan pursuant to the ~~consent or approval~~ terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the ~~majority of Noteholders~~ Granting Lender to the same extent, and 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 (~~by Outstanding Principal as~~ 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 ~~determination)~~SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that ~~the unanimous consent of all Noteholders shall be required~~ non-public information with respect to ~~any such waiver~~Holdings, ~~amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall~~ the Borrower and its Subsidiaries may be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict disclosed only with the ~~terms~~ Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~this Agreement or Applicable Law. In connection~~ any SPC with ~~providing access to~~ Loans outstanding at the ~~Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access~~ time of such ~~information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer~~proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Tronox Inc)

Successors and Assigns; Participations and Assignments. (ai) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of of, the ~~parties hereto~~Borrower, ~~all future Noteholders~~ the Lenders, the Administrative Agent and their respective successors and ~~assigns permitted hereby~~assigns, except ~~that~~ that, subject to Sections 9.3(a) and 9.3(b), the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of each Lender. (ii) Any Lender may, in the ~~Initial Noteholder (~~ordinary course of its business and ~~any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except~~ in accordance with ~~this Section 8.6. (b) Any Noteholder may~~applicable law, ~~without the consent of the Issuer, assign or transfer~~ at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks or other entities (~~each, an~~ “~~Assignee~~Participants”) ~~all~~ 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 Credit Documents. In the event of any such sale by a ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, such Lender’s obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the ~~Issuer~~ other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for ~~its records~~the performance thereof, ~~together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws~~ such Lender shall remain the beneficial holder of any ~~state of~~ such Loan and all other rights against the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other ~~modifications~~ parties to this Agreement and the other ~~Secured Note~~ Credit Documents ~~as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide~~ for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations purposes under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to and the other ~~parties hereto for~~ Credit Documents, and the ~~performance of such obligations, (C)~~ Borrower and the ~~Issuer~~ Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder~~Lender’s rights and obligations under this Agreement and ~~provided, further, that in~~ the other Credit Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ amendment or waiver of any provision of any Credit Document, or any consent to any departure by any Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the stated rate, or forgive any portion, or postpone the date for the payment, of any principal, interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), increase the aggregate amount of the Commitments of any Lender, postpone the date of the final scheduled maturity of any Loan or release or limit the liability of Opco under the Guarantee, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement; , provided ~~that~~ that, in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 12.8 as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Section 2.12~~Sections 2.10, 2.11, 3.5 and ~~2.13~~ 5.4 (to the ~~same~~ extent applicable) with respect to its participation in the Commitments and the Loans outstanding from time to time as if it were a ~~Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided~~Lender, ~~that the Noteholders and all Participants~~ provided that, no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law~~occurred, and ~~subject to the terms of this Section 8.6(c), each~~ further provided that no Participant ~~also~~ shall be entitled to the benefits of Section ~~8.7~~ 5.4 until such date as ~~though~~ such Participant shall have provided written notice to the Borrower and the Administrative Agent of the circumstances giving rise to the application of Section 5.4 together with sufficient information to enable the Borrower to comply with their obligations under Section 5.4. Furthermore, each time a participating interest is sold pursuant to the provisions hereof, the Lender who sold such participating interest shall, if not already done so by the Participant, deliver to the Borrower sufficient information to enable the Borrower to comply with their obligations under Section 5.3. (iii) Any Lender may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to (A) any Lender or any Affiliate thereof or Approved Fund with respect thereto (with the consent of the Borrower if any increased costs (which, for greater certainty, shall not include any increase in the BA Discount Rate which would result from such Lender, Affiliate or Approved Fund being a Schedule II Lender, Schedule III Lender or Non-Acceptance Lender) would result therefrom) or, (B) with the consent of the Borrower and the Administrative Agent (which in each case shall not be unreasonably withheld or delayed, it ~~were~~ being understood that, without limitation, the ~~Noteholder~~Borrower shall have the right to withhold their consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority), to an additional bank or fund that is regularly engaged in making, purchasing or investing in loans or securities or a financial institution (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Credit Documents pursuant to an assignment and assumption agreement, substantially in the form set forth in Schedule H hereto (“Assignment and Assumption”), with such modifications as the Administrative Agent shall require from time to time, executed by such Assignee and such assigning Lender (and, in the case of an Assignee that is not then a Lender, an Affiliate thereof or an Approved Fund with respect thereto, by the Borrower and the Administrative Agent) and delivered to the Borrower and to the Administrative Agent for its acceptance and recording in the Register, together with sufficient information to enable the Borrower to comply with their obligations under Section 5.3, provided that, except in the case of an assignment of all of a Lender’s interests under this Agreement, unless otherwise agreed to by the Administrative Agent, no such assignment to an Assignee (other than any Lender, any Affiliate thereof or any Approved Fund with respect thereto) and its Affiliates shall be in an aggregate principal amount of less than $5,000,000. In Upon such execution, delivery, acceptance and recording (referred to as the ~~event that~~ “Assignment Effective Date”), (A) the Assignee thereunder shall be a ~~Noteholder sells a participation~~ party hereto and, to the extent provided in such ~~Noteholder~~Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein and (B) the assigning Lender 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 or the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such ~~Noteholder, on behalf~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of ~~Issuer, shall maintain a register on which it enters the name, address and interest in~~ this Agreement ~~of all Participants. Each Noteholder shall refuse~~ to ~~register any transfer of any participation in violation of~~ the ~~foregoing restrictions~~contrary, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (d) For avoidance the consent of ~~doubt,~~ the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments of Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Notes, including, without limitation, any pledge or assignment by a Noteholder of any Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may Borrower shall not be ~~offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor~~ required for any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if assignment that occurs at any time ~~the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will~~ when any Event of Default shall have occurred and be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.continuing and

Appears in 1 contract

Samples: Credit Agreement

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder each Lender except ~~in accordance with this~~ pursuant to Section ~~8.6~~6.11. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~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 ~~or a portion of its~~ purposes under this Agreement and the other Loan Documents, and the Borrower and the 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (~~including~~ 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, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or ~~a portion~~ any part of ~~the Notes at the time owing to it)~~ its rights and obligations -------- under this Agreement pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $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. Any such assignment need not be ratable as among the Facilities. Upon such execution, ~~together with any related~~ delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, ~~in accordance with~~ such Assignor shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this Section 10.6, the consent of the ~~United States; provided that~~Borrower shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing with respect to the Borrower. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 11.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of the ~~Noteholders and Assignees. The Register shall contain the~~ names -------- and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ 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 the Loans recorded therein for all purposes of this Agreement. ~~The Issuer~~ Any assignment of any Loan, whether or not evidenced by a Note, shall ~~refuse to register any~~ be effective only upon appropriate entries with respect thereto being made in the Register (and each Note shall expressly so provide). Any assignment or transfer of ~~any~~ all or part of a Loan evidenced by a Note ~~in violation~~ shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~foregoing restrictions~~Note evidencing such Loan, ~~the restrictions set forth in Section 8.6(e)~~ accompanied by a duly executed Assignment and Acceptance, and thereupon one or ~~the restrictions set forth in the Note. The Issuer~~ more new Notes shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost be issued to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 10.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$3,500, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 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 Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Lifepoint Hospitals Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Arrangers, the Agents, the Managers, the Managing Agents, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and ~~any attempted assignment~~ each Lender. No Lender may assign its rights and obligations under this Agreement, except as provided in this Section 10.6. Any purported sale, assignment, participation or other transfer by ~~the Issuer without such consent~~ any Lender of any of its rights or obligations hereunder, other than as expressly permitted under this Section 10.6, shall be null and ~~void)~~ void and of no ~~Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~force and effect. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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, the Arrangers, the Agents, the Managing Agents and the Managers 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided, that, in the case of Section 2.20, such Participant shall have fully complied with the requirements of Section 2.20 and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to Section 2.19, 2.20 or 2.21 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to the Borrower (only in connection with a Permitted Loan Repurchase), any Lender, any Affiliate of the assigning Lender or of another Lender or any Affiliated Fund of the assigning Lender or of another Lender (provided, that if any funding obligations are assigned to such an Affiliate or such an Affiliated Fund, such Affiliate or Affiliated Fund, as applicable, shall have demonstrable resources to comply with such obligations) or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit 2 Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in the case of the Borrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld, conditioned or delayed), to an additional bank, financial institution or other entity that is an Eligible Assignee (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an assignment and acceptance agreement, substantially in the form of Exhibit E hereto or such other form as shall be approved by the Administrative Agent (such approval not to be unreasonably withheld) (an “Assignment and ~~Assumption or similar agreement which includes an agreement~~ Acceptance”; provided, that to the extent approved by the ~~assignee thereunder~~ Administrative Agent, an Assignment and Acceptance may be electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent, which shall initially be ~~bound by~~ the ~~terms and provisions~~ settlement system of ~~the Intercreditor Agreement~~ClearPar, LLC), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided, ~~together~~ that no such assignment to an Assignee (other than the Borrower (in connection with a Permitted Loan Repurchase), any ~~related~~ Lender or any Affiliate of the assigning Lender or of another Lender or Affiliated Fund of the assigning Lender or of another Lender) shall be in an aggregate principal amount of less than $5,000,000 with respect to Revolving Credit 1 Commitments or Revolving Credit 2 Commitments or $1,000,000 with respect to Term Loan Commitments or Term Loans, unless otherwise agreed by the Borrower and the Administrative Agent (provided, that for purposes of the foregoing limitations only, any two or more funds that concurrently invest in Loans and are managed by the same investment advisor, or investment advisors that are Affiliates of one another, shall be treated as a single 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 Acceptance, (x) the Assignee thereunder (unless such Assignee is the Borrower) shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6(c), 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. Furthermore, to the extent necessary in order to achieve the Commitments and Term B Loan Extensions of Credit on the Amended and Restated Effective Date set forth on Annex B hereto in accordance with ~~any applicable securities laws~~ Section 5.4(a), the Lenders under the Original Credit Agreement immediately prior to the Amended and Restated Effective Date shall be deemed to have assigned their respective Commitments and Term B Loan Extensions of ~~any state~~ Credit in existence immediately prior to the Amended and Restated Effective Date to Lenders party to this Agreement immediately after satisfaction of Section 5.4(a), and in each case the Borrower consents to such assignments. (d) The Administrative Agent shall, on behalf of the ~~United States; provided that~~Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 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 ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender’s Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment by the ~~Issuer, sell participations~~ Assignee or the Assignor to the Administrative Agent of a ~~Permitted Transferee~~ registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a ~~“Participant”) in all~~ Lender or ~~a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion~~ is an Affiliate of the ~~Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible~~ assigning Lender or of another Lender or an Affiliated Fund of the assigning Lender or of another Lender or with respect to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers initial syndication of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cCommitments), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Revolving Credit 1 Note, Revolving Credit 2 Note, Term B Note and/or New Term Note, as if the case may be, of the assigning Lender) a new Revolving Credit 1 Note, Revolving Credit 2 Note, Term B Note and/or New Term Note, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit 1 Commitment, Revolving Credit 2 Commitment, Term B Loans and/or New Term Loan or New Term Loan Commitment, as the case may be, assumed or acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit 1 Commitment, a Revolving Credit 2 Commitment, Term B Loans and/or New Term Loans or a New Term Loan Commitment, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, a new Revolving Credit 1 Note, Revolving Credit 2 Note, Term B Note and/or New Term Note, as the case may be, to the ~~terms of this Section 8.6(c)~~Assignor or its registered assigns in an amount equal to the Revolving Credit 1 Commitment, ~~each Participant also~~ Revolving Credit 2 Commitment, Term B Loans and/or New Term Loans or New Term Loan Commitment, as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ in the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNotes replaced thereby. (df) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more~~ the Borrower shall be permitted to acquire Loans (other than ~~one Noteholder~~ Swing Line Loans) pursuant to ~~Section 8.6(b)~~a Permitted Loan Repurchase so long as any Loans so acquired are cancelled and retired immediately upon the closing of such Permitted Loan Repurchase. For all purposes under this Agreement, upon the closing of a Permitted Loan Repurchase, any Loans acquired by the Borrower pursuant to such Permitted Loan Repurchase (i) ~~waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter~~ shall be deemed not to be ~~taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i)~~ outstanding and to have no principal amount and (ii) shall ~~require~~ be deemed to be automatically cancelled and retired without any further action by the ~~consent or approval of~~ Borrower, the ~~majority of Noteholders (by Outstanding Principal as of~~ Administrative Agent, the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement Lenders or any other ~~Secured Note Document~~ Person; provided, however, that is the Borrower shall take such actions and execute such documents and agreements as may be reasonably requested by the Administrative Agent to further evidence such cancellation and retirement. Immediately upon the cancellation and retirement of any Revolving Credit 1 Loans or Revolving Credit 2 Loans acquired by the Borrower from a ~~UST Non-Binding Amendment.~~ Revolving Credit Lender pursuant to a Permitted Loan Repurchase, the Revolving Credit 1 Commitment or Revolving Credit 2 Commitment of such Lender (has applicable) ~~The Issuer~~ shall be ~~deemed~~ reduced by an amount equal to ~~have satisfied its obligation~~ (i) such Revolving Credit Lender’s Revolving Credit 1 Commitment or Revolving Credit 2 Commitment (as applicable), multiplied by (ii) the quotient obtained by dividing (A) the principal amount of the Revolving Credit 1 Loans or Revolving Credit 2 Loans so acquired by (B) the aggregate amount of all Revolving 1 Extensions of Credit or Revolving 2 Extensions of Credit (as applicable) of such Lender immediately prior to ~~provide~~ such Permitted Loan Repurchase. For purposes of clarification, Permitted Loan Repurchases shall not constitute payments (or prepayments) of Loans for any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerpurpose hereunder.

Appears in 1 contract

Samples: Credit Agreement (Wynn Resorts LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of each of the ~~parties~~ Loan Parties party hereto, the Lenders, the Administrative Agent, the Other Representatives, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that none of the ~~Issuer may not~~ Loan Parties may, other than in accordance with subsection 8.5, assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than a Conduit Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Issuer~~its business, ~~assign or transfer~~ and in accordance with applicable law, at any time sell to one or more ~~assignees~~ banks or other entities ("PARTICIPANTS") 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; PROVIDED that is (unless the Borrower and the Administrative Agent otherwise consent in writing) no such participating interests shall be in an aggregate principal amount of less than $1,000,000 in the aggregate (or, if less, the full amount of such selling Lender's Revolving Credit Loans, Term Loans and Revolving Commitments). In the event of any such sale by a ~~Permitted Transferee (each~~Lender of a participating interest to a Participant, ~~an “Assignee”) all or a portion of its rights and~~ such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of any such ~~obligations, (C)~~ Loan for all purposes under this Agreement and the ~~Issuer~~ other Loan Documents and the Loan Parties and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of~~ the ~~Note, would trigger registration requirements under the Exchange Act~~other Loan Documents. Any agreement pursuant to which ~~a Noteholder sells~~ any Lender shall sell any such ~~a participation~~ participating interest shall provide that such ~~Noteholder~~ Lender shall retain the sole right and responsibility to exercise such Lender's rights and enforce ~~this Agreement and~~ each of the Loan Parties' obligations hereunder, including the right to ~~approve~~ consent to any amendment, supplement, modification or waiver of any provision of this ~~Agreement; provided~~ Agreement or any of the other Loan Documents, PROVIDED that such participation agreement may provide that such ~~Noteholder~~ Lender will ~~not~~not agree to any amendment, supplement, modification or waiver described in clause (i) or (ii) of the proviso to the second sentence of subsection 11.1 (a) without the consent of the Participant~~, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment~~. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower agrees that each ~~Participant~~ Lender shall be entitled to the benefits of ~~Section 2.12~~subsections 4.9, 4.10, 4.11, 4.12 and 11.5 without regard to whether it has granted any participating interests, and ~~2.13~~ that all amounts payable to a Lender under subsections 4.9, 4.10, 4.11, 4.12 and 11.5 shall be determined as if such Lender had not granted any such participating interests. (c) Any Lender other than any Conduit Lender 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 Lender Affiliate or, with the prior written consent of the Borrower and the Administrative Agent (which in each case shall not be unreasonably withheld), to an additional bank or financial institution (an "ASSIGNEE") all or any part of its rights and obligations under this Agreement, including, without limitation, its Revolving Credit Commitment, Term Loan Commitments and Loans, pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F, executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is not then a Lender or a Lender Affiliate thereof, by the Borrower and the Administrative Agent) and delivered to the ~~same extent as if it were~~ Administrative Agent for its acceptance and recording in the Register; PROVIDED that (i) (unless the Borrower and the Administrative Agent otherwise consent in writing) no such transfer to an Assignee (other than a ~~Noteholder and had acquired its interest by assignment pursuant to paragraph (b~~Lender or any Affiliate thereof) ~~of this Section 8.6; provided, that the Noteholders and all Participants~~ shall be ~~entitled to receive no greater~~ in an aggregate principal amount less than $1,000,000 in the aggregate (or, if less, the full amount of such assigning Lender's Term Loans, Revolving Credit Loans, Term Loan Commitments and Revolving Credit Commitment) and (ii) if any Lender assigns all or any part of its rights and obligations under this Agreement to one of its Affiliates in connection with or in contemplation of the sale or other disposition of its interest in such Affiliate, the Borrower's prior written consent shall be required for such assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such ~~Sections than~~ Assignment and Acceptance, (x) the ~~Noteholder would~~ Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and the Term Loan Commitment and the Term Loans, as set forth therein, and (y) the assigning Lender thereunder shall be released from its obligations under this Agreement to the extent that such obligations shall have been ~~entitled~~ expressly assumed by the Assignee pursuant to ~~receive had no~~ such ~~transfer occurred unless such transfer occurs while~~ Assignment and Acceptance (and, in the case of an ~~Event~~ Assignment and Acceptance covering all or the remaining portion of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s an assigning Lender's rights and obligations under this Agreement, such ~~Noteholder~~assigning Lender shall cease to be a party hereto but shall nevertheless continue to be entitled to the benefits of subsections 4.10, 4.11, 4.12 and 11.5). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this subsection 11.6(c). Notwithstanding the foregoing, no Assignee, which as of the date of any assignment to it pursuant to this subsection 11.6(c) would be entitled to receive any greater payment under subsection 4.10 or 4.11 than the assigning Lender would have been entitled to receive as of such date under such subsections with respect to the rights assigned, shall be entitled to receive such payments unless the Borrower has expressly consented in writing to waive the benefit of this provision at the time of the assignment. (d) The Administrative Agent, on behalf of ~~Issuer~~the Borrower, shall maintain at its address referred to in subsection 11.2 a copy of each Assignment and Acceptance delivered to it and a register ~~on which it enters~~ (the ~~name~~"REGISTER") for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment and Term Loan Commitments of, ~~address~~ and ~~interest~~ the principal amount of the Loans owing to, and any Notes evidencing such Loans owned by, each Lender from time to time. Notwithstanding anything in this Agreement ~~of all Participants. Each Noteholder~~ to the contrary, the Borrower, the Administrative Agent and the Lenders shall ~~refuse to register any transfer~~ treat each Person whose name is recorded in the Register as the owner of any ~~participation~~ Loan, any Notes and the Revolving Credit Commitments and Term Loan Commitments recorded therein for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Notwithstanding anything in ~~violation~~ this Agreement to the contrary, no assignment under subsection 11.6(c) of any rights or obligations under or in respect of the ~~foregoing restrictions~~Loans or the Notes evidencing such Loans shall be effective unless and until the Administrative Agent shall have recorded the assignment pursuant to subsection 11.6(d). Upon its receipt of an Assignment and Acceptance executed by an assigning Lender 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 $4,000 (which fee need not be paid in the case of any assignment to an Affiliate of the assigning Lender), the ~~restrictions set forth~~ Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in ~~Section 8.6(e)~~ the Register and give prompt notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective date, the assigning Lender shall surrender any outstanding Notes held by it all or a portion of which are being assigned, and the Borrower, at its own expense, shall, upon the request to the Administrative Agent by the assigning Lender or the ~~restrictions set forth~~ Assignee, as applicable, execute and deliver to the Administrative Agent (in exchange for the outstanding Notes of the assigning Lender) a new Revolving Credit Note, Term Note, and/or Swing Line Note, as the case may be, to the order of such Assignee in an amount equal to (i) in the case of a Revolving Credit Note~~. If any such participation is in certificated form~~, ~~it shall bear~~ the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY lesser of (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR the amount of such Assignee's Revolving Credit Commitment and (B) ~~TO THE ISSUER OR ITS SUBSIDIARIES AND~~the aggregate principal amount of all Revolving Credit Loans made by such Assignee, ~~IN EACH CASE~~(ii) in the case of a Term Note, ~~IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER~~the amount of such Assignee's Term Loans, ~~OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS~~and (iii) in the case of a Swing Line Note, ~~WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934~~the lesser of (A) the Swing Line Commitment and (B) the aggregate principal amount of all Swing Line Loans made by such Assignee, ~~AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER~~in each case with respect to the relevant Loan, Swing Line Commitment, Revolving Credit Commitment or Term Loan Commitment after giving effect to such Assignment and Acceptance and, if the assigning Lender has retained a Swing Line Commitment, Revolving Credit Commitment, Term Loan Commitment or Term Loan hereunder, a new Revolving Credit Note, Term Note, and/or Swing Line Note, as the case may be, to the order of the assigning Lender in an amount equal to (i) in the case of a Revolving Credit Note, the lesser of (A) the amount of such Lender's Revolving Credit Commitment and (B) the aggregate principal amount of all Revolving Credit Loans made by such Lender, (ii) in the case of a Term Note, the amount of such Lender's Term Loans, and (iii) in the case of a Swing Line Note, the lesser of (A) the Swing Line Commitment and (B) the aggregate principal amount of all Swing Line Loans made by such Lender, in each case with respect to the relevant Loan, Swing Line Commitment, Revolving Credit Commitment or Term Loan Commitment after giving effect to such Assignment and Acceptance. Any such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. Any Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Borrower marked "cancelled". (df) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee, subject to the provisions of subsection 11.16, any and all information in such Lender's possession concerning the Borrower and their 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. No assignment or participation made or purported to be made to any Transferee shall be effective without the prior written consent of the Borrower if it would require the Borrower to make any filing with any Governmental Authority or qualify any Loan or Note under the laws of any jurisdiction, and the Borrower shall be entitled to request and receive such information and assurances as it may reasonably request from any Lender or any Transferee to determine whether any such filing or qualification is required or whether any assignment or participation is otherwise in accordance with applicable law. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 8.6~~ subsection 11.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit ~~assignments creating security interests in Notes, including, without limitation,~~ any pledge or assignment (i) by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document law or (ii) by any ~~advice, consent, vote, action, direction or other matter~~ Lender of any Loan to ~~be taken, not taken or determined under this Agreement or~~ any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required trustee with respect to ~~any~~ a pool of collateralized loan obligations which includes the obligations owing to such ~~waiver~~Lender hereunder, ~~amendment, modification, supplement, restatement~~ PROVIDED that the foreclosure or ~~other revision~~ similar action by such trustee shall be subject to the provisions of this ~~Agreement~~ subsection concerning assignments and such foreclosure or ~~any other Secured Note Document that is a UST Non-Binding Amendment~~similar action shall be void and of no force or effect unless effected in compliance with such provisions. (h) The ~~Issuer~~ Borrower, each Lender and the 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, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of 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 expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. Each such indemnifying Lender shall pay in full any claim received from the Borrower pursuant to this subsection 11.6(h) within 30 Business Days of receipt of a certificate from a Responsible Officer of the Borrower specifying in reasonable detail the cause and amount of the loss, cost, damage or expense in respect of which the claim is being asserted, which certificate shall be ~~deemed~~ conclusive absent manifest error. Without limiting the indemnification obligations of any indemnifying Lender pursuant to ~~have satisfied its obligation~~ this subsection 11.6(h), in the event that the indemnifying Lender fails timely to ~~provide~~ compensate the Borrower for such claim, any ~~Noteholder (other than~~ Loans held by the ~~Initial Noteholder) with any report~~relevant Conduit Lender shall, ~~notice~~if requested by the Borrower, ~~financial statement or other information required to~~ be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website assigned promptly to the ~~extent~~ Lender that administers the Conduit Lender and the designation of such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerConduit Lender shall be void.

Appears in 1 contract

Samples: Credit Agreement (Riverwood Holding Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Arrangers, the Agents, the Managers, the Managing Agents, all future ~~Noteholders~~ holders of the Loans and Letters of Credit and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the ~~Initial Noteholder (~~Administrative Agent and ~~any attempted assignment~~ each Lender. No Lender may assign its rights and obligations under this Agreement, except as provided in this Section 10.6. Any purported sale, assignment, participation or other transfer by ~~the Issuer without such consent~~ any Lender of any of its rights or obligations hereunder, other than as expressly permitted under this Section 10.6, shall be null and ~~void)~~ void and of no ~~Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~force and effect. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower or any other Person, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ 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, the Arrangers, the Agents, the Managing Agents and the Managers 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 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.19, 2.20 and 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided, that, in the case of Section 2.20, such Participant shall have fully complied with the requirements of Section 2.20 and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to Section 2.19, 2.20 or 2.21 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender, any Affiliate of the assigning Lender or of another Lender or any Affiliated Fund of the assigning Lender or of another Lender (provided, that if any funding obligations are assigned to such an Affiliate or such an Affiliated Fund, such Affiliate or Affiliated Fund, as applicable, shall have demonstrable resources to comply with such obligations) or, with the consent of the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in the case of the Borrower, the Administrative Agent, the Issuing Lender and the Swing Line Lender, shall not be unreasonably withheld, conditioned or delayed), to an additional bank, financial institution or other entity that is an Eligible Assignee (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an assignment and acceptance agreement, substantially in the form of Exhibit E hereto or such other form as shall be approved by the Administrative Agent (such approval not to be unreasonably withheld) (an “Assignment and ~~Assumption or similar agreement which includes an agreement~~ Acceptance”; provided, that to the extent approved by the ~~assignee thereunder~~ Administrative Agent, an Assignment and Acceptance may be electronically executed and delivered to the Administrative Agent via an electronic settlement system then acceptable to the Administrative Agent, which shall initially be ~~bound by~~ the ~~terms and provisions~~ settlement system of ~~the Intercreditor Agreement~~ClearPar, LLC), executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided, ~~together~~ that no such assignment to an Assignee (other than any Lender or any Affiliate of the assigning Lender or of another Lender or Affiliated Fund of the assigning Lender or of another Lender) shall be in an aggregate principal amount of less than $5,000,000 with respect to Revolving Credit Commitments or $1,000,000 with respect to Term Loan Commitments, unless otherwise agreed by the Borrower and the Administrative Agent (provided, that for purposes of the foregoing limitations only, any ~~related~~ two or more funds that concurrently invest in Loans and are managed by the same investment advisor, or investment advisors that are Affiliates of one another, shall be treated as a single 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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment and/or Loans as set forth therein and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6(c), 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. Furthermore, to the extent necessary in order to achieve the Commitments and Term B Loan Extensions of Credit on the Amended and Restated Effective Date set forth on Annex B hereto in accordance with ~~any applicable securities laws~~ Section 5.4(a), the Lenders under the Original Credit Agreement immediately prior to the Amended and Restated Effective Date shall be deemed to have assigned their respective Commitments and Term B Loan Extensions of ~~any state~~ Credit in existence immediately prior to the Amended and Restated Effective Date to Lenders party to this Agreement immediately after satisfaction of Section 5.4(a), and in each case the Borrower consents to such assignments. (d) The Administrative Agent shall, on behalf of the ~~United States; provided that~~Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 10.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitment of, and principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, 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 (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 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 ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender’s Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment by the ~~Issuer, sell participations~~ Assignee or the Assignor to the Administrative Agent of a ~~Permitted Transferee~~ registration and processing fee of $3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a ~~“Participant”) in all~~ Lender or ~~a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion~~ is an Affiliate of the ~~Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible~~ assigning Lender or of another Lender or an Affiliated Fund of the assigning Lender or of another Lender or with respect to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers initial syndication of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cCommitments), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Revolving Credit Note, Term B Note and/or New Term Note, as if the case may be, of the assigning Lender) a new Revolving Credit Note, Term B Note and/or New Term Note, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment, Term B Loan Commitment and/or New Term Loan Commitment, as the case may be, assumed or acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit Commitment, Term B Loan Commitment and/or New Term Loan Commitment, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, a new Revolving Credit Note, Term B Note and/or New Term Note, as the case may be, to the ~~terms of this Section 8.6(c)~~Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment, ~~each Participant also~~ Term B Loan or Term B Loan Commitment and/or New Term Loan or New Term Loan Commitment, as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ in the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNotes replaced thereby. (df) For the avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law~~applicable law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Wynn Resorts LTD)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~parties hereto~~Borrower, the Lenders, the Agents, all future ~~Noteholders~~ holders of the Loans and their respective successors (which shall include, in the case of any Lender, any entity resulting from a merger or consolidation) and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender other than any Conduit Lender may, without the consent of the ~~Issuer~~Borrower or the Administrative Agent, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, a "Participant"), including, without limitation, any Conduit Participant, participating interests in any Loan owing to such Lender, any Tranche A Incremental Term Commitment or 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 obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, 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 (i) reduce the amount or extend the scheduled date of amortization or maturity of any Loan, (ii) reduce the rate of interest or any fee or extend any due date thereof or (iii) increase the amount or extend the expiry date of any Lender's commitment, in each case to 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 it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18 with respect to its participation in the Tranche A Incremental Term Commitments and the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 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. (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 Approved Fund or, with the consent of the Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee”") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such ~~Assignee~~ Assignee, such "Assignor and ~~such Noteholder~~ any other Person whose consent is required pursuant to this paragraph, and delivered to the ~~Issuer~~ Administrative Agent for its ~~records, together with any related rights~~ acceptance and ~~obligations thereunder and,~~ recording in ~~each case, in accordance with any applicable securities laws of any state of~~ the ~~United States~~Register; provided that, except in ~~no event may any transfer~~ the case of an assignment of all of a ~~Note~~ Lender'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 ~~made~~ 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. For purposes of clauses (i) and (ii) of the preceding sentence, the amounts described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Any such ~~transfer~~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 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Tranche A Incremental Term Commitment or a Revolving Commitment and/or Loans as set forth therein, and (y) the "Assignor thereunder shall, to the extent provided in such ~~transfer together with~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such "Assignor shall cease to be a party hereto). Notwithstanding any ~~prior transfers~~provision of this Section 10.6, ~~would trigger registration requirements under~~ the ~~Exchange Act~~consent of the Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. On the effective date of any Assignment and Acceptance, the Administrative Agent shall give notice of the terms thereof to the Syndication Agent. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The ~~Issuer or~~ Administrative Agent shall, on behalf of the Borrower, maintain at its ~~agent will maintain~~ address referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register (“the "Register”") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders~~ Lenders and ~~Assignees~~ the Tranche A Incremental Term Commitment and the Revolving Commitment of, and the principal amount of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, each 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 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 (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 Acceptance, and thereupon one or more new Notes shall be issued to the designated Assignee. The ~~Issuer shall refuse to register any transfer of any Note in violation~~ Administrative Agent will promptly send a copy of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost Register to the ~~Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder~~ Borrower upon ~~such Noteholder’s reasonable~~ request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an "Assignor, ~~without the~~ an Assignee and any other Person whose consent ~~of the Issuer~~is required by Section 10.6(c), sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible together with payment to the ~~other parties hereto for the performance~~ Administrative Agent of ~~such obligations, (C) the Issuer shall continue to deal solely~~ a registration and directly with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers processing fee of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c)$3,500, the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled to~~ (i) promptly accept such Assignment and Acceptance and (ii) record the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount information contained therein in the ~~aggregate~~ Register on the effective date determined pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERthereto. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 10.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder~~ Lender of any ~~Note~~ Loan to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject to Section 8.1~~Each of Holdings, ~~if there is more than one Noteholder pursuant to Section 8.6(b)~~the Borrower, ~~any (i) waiver, amendment, modification, supplement, restatement~~ each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or ~~other revision to this Agreement or~~ join any other ~~Secured Note Document~~ Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or ~~(ii)~~ liquidation proceeding under any ~~advice~~state bankruptcy or similar law, ~~consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by~~ for one year and one day after the ~~Noteholders,~~ payment in ~~the case of each of clauses (i) and (ii) shall require the consent or approval~~ full of the ~~majority~~ 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 expense arising out of ~~Noteholders (by Outstanding Principal as~~ its inability to institute such a proceeding against such Conduit Lender during such period of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentforbearance. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimer.

Appears in 1 contract

Samples: Credit Agreement (Charter Communications Inc /Mo/)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that the ~~Issuer~~ Borrower may not assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement or any other Loan Document without the prior written consent of the ~~Initial Noteholder~~ Administrative Agent and each Lender (and any attempted such assignment or transfer ~~by the Issuer~~ without such ~~consent~~ consents shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Revolving Credit Loan or Tranche C Term Loan owing to such Lender, the Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Revolving Credit Loan or Tranche C Term Loan or any Reimbursement Obligation for all purposes under this Agreement and the other Loan Documents, and the Borrower and the 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 and each Lender shall retain the sole right to enforce any Loan Document and approve any amendment, modification or waiver of any provision of the Loan Documents, except that a selling Lender may agree that, without the Participant’s consent, such selling Lender will not agree to any amendment, waiver or consent to any provisions of the Loan Documents to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or Reimbursement Obligations or any fees payable hereunder, release all or substantially all of the Collateral, release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender hereunder. The Borrower also 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 Revolving Credit Commitments and the Loans and Reimbursement Obligations outstanding from time to time as if it were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Approved Fund or Control Investment Affiliate thereof or, with the consent of each Issuing Lender, the Swing Line Lender, the Administrative Agent and the Borrower (which, in each case, shall not be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of the Notes at the time owing to it)~~ pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement~~Acceptance, executed by such Assignee and such ~~Noteholder~~ Assignor (and, where the consent of the Borrower or any other Person is required pursuant to the foregoing provisions, by the Borrower and each such other Person) and delivered to the ~~Issuer~~ Administrative Agent for its ~~records~~acceptance and recording in the Register; provided that no such consent of the Issuing Lender or the Swing Line Lender need be obtained with respect to any assignment of the Tranche C Term Loans; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $3,000,000 with respect to Revolving Credit Loans and $1,000,000 with respect to Tranche C Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~together~~ unless (i) otherwise agreed by the Borrower and the Administrative Agent or (ii) such assignment is one of two or more assignments being made simultaneously by or to affiliated Assignees or Approved Funds, the sum of the aggregate principal amounts of which is at least $3,000,000 with ~~any related~~ respect to Revolving Credit Loans and $1,000,000 with respect to Tranche C Term Loans. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans and other interests as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and 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, 2.20 and 9.5 in ~~accordance with any applicable securities laws of any state~~ respect of the ~~United States; provided that~~period prior to such effective 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. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~no event may any transfer~~ Section 9.2 a copy of ~~a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ each Assignment and Acceptance delivered to it and a register (the “Register”) for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Revolving Credit Commitment of, and principal amount of the ~~Notes (~~Revolving Extensions of Credit and ~~stated interest thereon) held by~~ Tranche C Term Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Revolving Extensions of Credit, Tranche C Term Loans and any Notes evidencing 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 (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 Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee (to the extent requested by such designated Assignee), and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The ~~Issuer~~ Register shall ~~refuse to register~~ be available for inspection by the Borrower or any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder Lender (with respect to any ~~other Noteholder~~ entry relating to such Lender’s Revolving Extensions of Credit and Tranche C Term Loans) at any reasonable time and from time to time upon ~~such Noteholder’s~~ reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERprior notice. (ce) ~~Any Noteholder may~~Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, ~~without~~ in any case where the consent of any other Person is required by Section 9.6(c), by each such other Person) together with payment to the ~~Issuer~~Administrative Agent of a registration and processing fee of $3,500 payable by the Assignee thereof (treating multiple, ~~sell participations~~ simultaneous assignments by or to two or more Approved Funds as a ~~Permitted Transferee~~ single assignment) (~~a “Participant”)~~ except that no such registration and processing fee shall be payable in ~~all~~ the case of an Assignee which is an affiliate or Approved Fund of such Lender, or a ~~portion of such Noteholder’s rights and obligations~~ Person under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly common management with such Noteholder in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(cLender), the ~~Issuer agrees that each Participant~~ Administrative Agent shall ~~be entitled~~ (i) promptly accept such Assignment and 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 ~~benefits of Section 2.12~~Borrower. On or prior to such effective date, the Borrower at its own expense, upon request, shall execute and ~~2.13~~ deliver to the ~~same extent~~ Administrative Agent (in exchange for the Notes of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Tranche C Term Loans, as if the case may be, assumed or acquired by it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such ~~Sections than~~ Assignment and Acceptance and, if the ~~Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To~~ Assignor has retained a Revolving Credit Commitment and/or Tranche C Term Loans, as the ~~extent permitted by law~~case may be, ~~and subject~~ upon request, new Notes, as the case may be, to the ~~terms~~ order of ~~this Section 8.6(c)~~the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Tranche C Term Loans, ~~each Participant also~~ as the case may be, retained by it hereunder. Such new Note or Notes shall be ~~entitled to~~ dated the ~~benefits of Section 8.7 as though it were~~ Restatement Date and shall otherwise be in the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, such Noteholder, on behalf of Issuer, shall maintain a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation form of the ~~foregoing restrictions, the restrictions set forth in Section 8.6(e)~~ Note or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERNotes replaced thereby. (df) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facilitylaw. (g) ~~Subject~~ Notwithstanding anything to ~~Section 8.1~~the contrary contained herein, ~~if there is more than one Noteholder~~ 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, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Granting Lender’s and the Borrower’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, the Granting Lender shall remain solely responsible for the performance thereof, and the Borrower, the Lenders and the Agents shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under this Agreement and the other Loan Documents. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~8.6(b~~9.6(g), any SPC may (iA) ~~waiver~~with notice to, ~~amendment~~but without the prior written consent of, ~~modification~~the Borrower and the Administrative Agent and without paying any processing fee therefor, ~~supplement~~assign all or a portion of its interests in any Loans to the Granting Lender, ~~restatement~~ or ~~other revision~~ with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to ~~this Agreement~~ any financial institutions providing liquidity and/or credit support to or ~~any other Secured Note Document~~ for the account of such SPC to support the funding or ~~(ii) any advice~~maintenance of Loans, ~~consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i)~~ and (iiB) ~~shall require the consent~~ disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or ~~approval~~ provider of ~~the majority of Noteholders (by Outstanding Principal as of the date of~~ any surety, guarantee or credit or liquidity enhancement to such ~~determination)~~SPC; provided that non-public information with respect to the ~~unanimous~~ Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all ~~Noteholders~~ 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 ~~required~~ entitled to grant or withhold any consent applicable to such Loan, but such Granting Lender shall communicate with ~~respect~~ the Administrative Agent and the Borrower as to ~~any~~ the giving or withholding of such ~~waiver~~consent, ~~amendment, modification, supplement, restatement or other revision~~ and the parties to ~~this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer~~ the Loan Documents shall be ~~deemed~~ entitled to ~~have satisfied its obligation~~ rely conclusively on the advice by such Granting Lender as to ~~provide~~ whether such consent is being granted or withheld. This paragraph (g) may not be amended without the written consent of any ~~Noteholder (other than~~ SPC with Loans outstanding at the ~~Initial Noteholder) with any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making~~ time of such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimerproposed amendment.

Appears in 1 contract

Samples: Credit Agreement (B&G Foods, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Telex Communications Inc)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, ~~all future Noteholders~~ Holdings, the Lenders, the Agent and their respective successors and ~~assigns permitted hereby~~assigns, except that neither the ~~Issuer~~ Borrower nor Holdings may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under this Agreement without the prior written consent of ~~the Initial Noteholder (~~each Lender and any ~~attempted~~ assignment or transfer by ~~the Issuer without such consent~~ any Lender of its rights or obligations under this Agreement or any Loan Document must be made in compliance with this subsection 13.6 (and any purported assignment in violation of this subsection shall be null and void~~) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6~~). (b) Any ~~Noteholder~~ Lender may, ~~without~~ in the ordinary course of its lending or investment business and in accordance with applicable law, at any time sell to one or more financial institutions or other entities ("LOAN PARTICIPANTS") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Loan Participant, (i) such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, (iv) the Borrower and the 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, and (v) no Loan Participant under any participation shall have any 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 with respect to the matters described in clauses (i) and (ii) of the proviso to the second sentence of subsection 13. 1. The Borrower agrees that, while an Event of Default shall have occurred and be continuing if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Loan Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender (a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Loan Participant shall be entitled to the benefits of subsections 5.9, 5.10 and 5.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; PROVIDED that, in the case of subsection 5.10 such Loan Participant shall have complied with the requirements of said subsection and PROVIDED, FURTHER, that no Loan Participant shall be entitled to receive any greater amount pursuant to any such 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 Loan Participant had no such transfer occurred. (c) Any Lender may, in the ordinary course of its lending or investment business and in accordance with applicable law, at any time and from time to time assign, with the consent of the ~~Issuer~~Borrower and the Agent (which in each case shall not be unreasonably withheld), ~~assign~~ to any other Lender or ~~transfer~~ any affiliate thereof or to ~~one~~ an additional bank or ~~more assignees that is a Permitted Transferee~~ financial institution (~~each,~~ an ~~“Assignee”~~"ASSIGNEE") all or ~~a portion~~ any part of its rights and obligations under this Agreement ~~(including all or a portion of~~ and the ~~Notes at the time owing to it)~~ other Loan Documents pursuant to an Assignment and ~~Assumption or similar agreement which includes an agreement by~~ Acceptance, substantially in the ~~assignee thereunder to be bound by the terms and provisions~~ form of ~~the Intercreditor Agreement~~EXHIBIT T, executed by such Assignee and such ~~Noteholder~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and the Agent) and delivered to the ~~Issuer~~ Agent for its ~~records~~acceptance and recording in the Register, ~~together with~~ PROVIDED that, (i) in the case of any ~~related~~ such assignment to an Assignee that is an affiliate of the assigning Lender, the consent of the Borrower shall only be required if, at the time of such assignment, such Assignee would be entitled to require the Borrower to pay, or the Borrower would be required to pay, greater amounts under subsection 5.9 or 5.10 than if no such assignment had occurred and (ii) in the case of any such assignment to an additional bank or financial institution, if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Loans, the aggregate amount of the L/C Obligations and the aggregate amount of the unused Commitments remaining with the assigning Lender are not less than $5,000,000 (or such lesser amount as may be agreed to by the Borrower and the Agent). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in ~~each case~~the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, ~~in accordance with~~ such assigning Lender shall cease to be a party hereto). Notwithstanding any ~~applicable securities laws~~ provision of ~~any state~~ this paragraph (c) and paragraph (e) of this subsection, the consent of the ~~United States; provided that~~Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrower, for any assignment which occurs when any of the events described in ~~no event may any transfer~~ Section 11(f) shall have occurred and be continuing. (d) The Agent, on behalf of the Borrower, shall maintain at the address of the Agent referred to in subsection 13.2 a ~~Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain~~ copy of each Assignment and Acceptance delivered to it and a register (~~“Register”~~the "REGISTER") for the recordation of ~~the Noteholders and Assignees. The Register shall contain~~ the names and addresses of the ~~Noteholders and Assignees~~ Lenders and the Commitments of, and principal ~~amount~~ amounts of the ~~Notes (and stated interest thereon) held by~~ Loans owing to, each ~~Noteholder and each Assignee~~ Lender from time to time. The entries in the Register shall be ~~conclusive and binding~~conclusive, ~~absent~~ in the absence of manifest error~~. The Issuer shall refuse to register any transfer of any Note in violation of~~ , and the ~~foregoing restrictions~~Borrower, the ~~restrictions set forth in Section 8.6(e) or~~ Agent and the ~~restrictions set forth~~ Lenders shall treat each Person whose name is recorded in the ~~Note. The Issuer shall enter into such amendments~~ Register as the owner of a Loan or other ~~modifications to~~ obligation hereunder as the owner thereof for all purposes of this Agreement and the other ~~Secured Note Documents as are reasonably required~~ Loan Documents, notwithstanding any notice to ~~accommodate~~ the contrary. Any assignment of any ~~such assignments~~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. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, ~~including~~in the case of an Assignee that is not then a Lender or an affiliate thereof, ~~without limitation, amendments or modifications which provide for~~ by the ~~accommodation of multiple holders~~ Borrower and the ~~appointment~~ Agent) together with, except in the case of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to ~~this Section 8.6(b~~subsection 5.13, payment to the Agent of a registration and processing fee of $3,500, the Agent shall (i) ~~shall bear~~ promptly accept such Assignment and Acceptance and (ii) on the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUEReffective 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. (cf) ~~Any Noteholder may~~The Borrower authorizes each Lender to disclose to any Loan Participant or Assignee (each, ~~without~~ a "TRANSFEREE") and any prospective Transferee, subject to the ~~consent~~ provisions of subsection 13.15, 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 ~~Issuer, sell participations~~ Borrower pursuant to ~~a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under~~ this Agreement ~~(including all~~ or ~~a portion~~ which has been delivered to such Lender by or on behalf of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, (B) such Noteholder shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Issuer shall continue to deal solely and directly with such Noteholder Borrower in connection with such Noteholder’s rights and obligations under this Agreement and provided, further, that in no event may any participation in a Note be made if such indirect transfer, or such indirect transfer together with any prior transfers or indirect transfers Lender's credit evaluation of the ~~Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant~~ Borrower and its Affiliates prior to ~~which~~ becoming a ~~Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right~~ party to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Noteholder will not, without the consent of the Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. Subject to the terms of this Section 8.6(c), the Issuer agrees that each Participant shall be entitled to the benefits of Section 2.12, and 2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided, that the Noteholders and all Participants shall be entitled to receive no greater amount in the aggregate pursuant to such Sections than the Noteholder would have been entitled to receive had no such transfer occurred unless such transfer occurs while an Event of Default shall have occurred and be continuing. To the extent permitted by law, and subject to the terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation in such Noteholder’s rights and obligations under this Agreement, PROVIDED, that unless the Agent and the Borrower shall otherwise agree, prior to any such ~~Noteholder, on behalf of Issuer,~~ disclosure such Transferee shall ~~maintain~~ have executed a register on which it enters the name, address and interest in this Agreement of all Participants. Each Noteholder shall refuse to register any transfer of any participation in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth Confidentiality Letter in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER.form of EXHIBIT U. (dg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 8.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, including, without limitation, any pledge or assignment by a ~~Noteholder~~ Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933~~applicable law, ~~as amended (the “Securities Act”)~~PROVIDED that no such assignment, ~~or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in~~ whether to a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement Federal Reserve Bank or other ~~revision to this Agreement~~ entity, shall release a Lender from any of its obligations hereunder or substitute any ~~other Secured Note Document or (ii) any advice, consent, vote, action, direction~~ such Federal Reserve Bank or other ~~matter~~ entity for such Lender as a party hereto or permit an absolute assignment to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendment. (h) The Issuer shall be deemed to have satisfied its obligation to provide any Noteholder (occur other than ~~the Initial Noteholder)~~ in accordance with ~~any report, notice, financial statement or other information required to be provided under this Agreement or any other Secured Note Document, by making~~ such ~~report, notice, financial statement or other information available by electronic media, bulletin board service or internet website to the extent such action does not conflict with the terms~~ provisions of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimersubsection.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Warren S D Co /Pa/)

Successors and Assigns; Participations and Assignments. (a) ~~The provisions of this~~ This Agreement shall be binding upon and inure to the benefit of the ~~parties hereto~~Borrower, the Guarantors, the Lenders, the Administrative Agent, all future ~~Noteholders~~ holders of the Loans and their respective successors and ~~assigns permitted hereby~~assigns, except that neither the ~~Issuer~~ Borrower nor any Guarantor may ~~not~~ assign or ~~otherwise~~ transfer any of its rights or obligations ~~hereunder~~ under any Loan Document without the prior written consent of the Initial Noteholder (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and no Noteholder may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 8.6each Lender. (b) Any ~~Noteholder~~ Lender may, without the consent of the ~~Issuer~~Borrower, ~~assign or transfer~~ in accordance with applicable law, at any time sell to one or more ~~assignees that is a Permitted Transferee~~ banks, financial institutions or other entities (each, ~~an “Assignee”~~a "Participant") ~~all~~ 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 ~~portion~~ Lender of ~~its rights and~~ a participating interest to a Participant, such Lender's obligations under this Agreement (including all or a portion of the Notes at the time owing to it) pursuant to an Assignment and Assumption or similar agreement which includes an agreement by the assignee thereunder to be bound by the terms and provisions of the Intercreditor Agreement, executed by such Assignee and such Noteholder and delivered to the Issuer for its records, together with any related rights and obligations thereunder and, in each case, in accordance with any applicable securities laws of any state of the United States; provided that, in no event may any transfer of a Note be made if such transfer, or such transfer together with any prior transfers, would trigger registration requirements under the Exchange Act. The Issuer or its agent will maintain a register (“Register”) of the Noteholders and Assignees. The Register shall contain the names and addresses of the Noteholders and Assignees and the principal amount of the Notes (and stated interest thereon) held by each Noteholder and each Assignee from time other parties to time. The entries in the Register shall be conclusive and binding, absent manifest error. The Issuer shall refuse to register any transfer of any Note in violation of the foregoing restrictions, the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. The Issuer shall enter into such amendments or other modifications to this Agreement and the other Secured Note Documents as are reasonably required to accommodate any such assignments, including, without limitation, amendments or modifications which provide for the accommodation of multiple holders and the appointment of administrative and collateral agents for the Noteholder and such Assignees; provided that such amendments or modifications do not materially increase the tax cost to the Issuer of maintaining the Notes. If there is more than one Noteholder, the Issuer shall provide all information and documents delivered hereunder to the Initial Noteholder to any other Noteholder upon such Noteholder’s reasonable request. The Initial Note and each additional Note issued pursuant to Section 2.3(b) in connection with an assignment pursuant to this Section 8.6(b) shall bear the following legend: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2) PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A NOTE BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUER. (c) Any Noteholder may, without the consent of the Issuer, sell participations to a Permitted Transferee (a “Participant”) in all or a portion of such Noteholder’s rights and obligations under this Agreement (including all or a portion of the Notes owing to it); provided that (A) such Noteholder’s obligations under this Agreement shall remain unchanged, ~~(B)~~ such ~~Noteholder~~ Lender shall remain solely responsible ~~to the other parties hereto~~ for the performance thereof, such Lender shall remain the holder of the entire amount of any such ~~obligations~~Loan for all purposes under this Agreement except as specified in the following three sentences and the other Loan Documents, ~~(C)~~ and the ~~Issuer~~ Borrower, the Guarantors and the Administrative Agent shall continue to deal solely and directly with such ~~Noteholder~~ Lender in connection with such ~~Noteholder’s~~ Lender's rights and obligations under this Agreement and ~~provided, further, that in~~ the other Loan Documents. In no event ~~may~~ shall any Participant under any such participation ~~in a Note be made if such indirect transfer, or such indirect transfer together with~~ have any prior transfers or indirect transfers of the Note, would trigger registration requirements under the Exchange Act. Any agreement pursuant to which a Noteholder sells such a participation shall provide that such Noteholder shall retain the sole right ~~to enforce this Agreement and~~ to approve any ~~amendment, modification~~ 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 reduce the amount of, or postpone the payment of, the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of 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 that in purchasing such ~~agreement may provide that~~ participating interest, such ~~Noteholder will not, without~~ Participant shall be deemed to have agreed to share with the ~~consent of~~ Lenders the ~~Participant, agree to any waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is~~ proceeds thereof as provided in Section 10.7(a) as fully as if it were a ~~UST Non-Binding Amendment~~Lender hereunder. ~~Subject to the terms of this Section 8.6(c), the Issuer~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.11, 2.12 and 2.13 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that in the case of Section 2.12, such Participant shall have complied with the requirements of said Section and ~~2.13 to the same extent as if it were a Noteholder and had acquired its interest by assignment pursuant to paragraph (b) of this Section 8.6; provided,~~ provided further that ~~the Noteholders and all Participants~~ no Participant shall be entitled to receive no any greater amount ~~in the aggregate~~ pursuant to any such ~~Sections~~ Section than the ~~Noteholder~~ transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred unless such transfer occurs while~~ occurred. (c) Any Lender (an "Assignor") may, in accordance with applicable law and subject to the provisions of Section 10.6(d), at any time and from time to time assign to any Lender or any Lender Affiliate or, with the consent of the Administrative Agent and (so long as no Default or Event of Default shall have occurred and be continuing~~. To~~ ) the Borrower (which, in each case, shall not be unreasonably withheld or delayed, and which, in the case of the Borrower, shall be deemed to have been given if the Borrower fails to respond to a written request within 5 Business Days of delivery of such request), 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 Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that unless otherwise agreed by the Borrower (to the extent ~~permitted by law~~the Borrower's consent to such Assignment is then required) and the Administrative Agent, each such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount (i) in the case of Dollar Loans, equal to at least $5,000,000 or a whole multiple of $1,000,000 in excess thereof, (ii) in the case of Euro Loans, equal to at least (euro)5,000,000 or a whole multiple of (euro)1,000,000 in excess thereof or (iii) in the case of Yen Loans, equal to at least (Y)500,000,000 or a whole multiple of (Y)100,000,000 in excess thereof, in each case except in the case of an assignment of all of a Lender's interests under any Tranche. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Any such assignment need not be ratable as between the Tranches. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with Loans as set forth therein, and ~~subject~~ (y) the Assignor thereunder shall, to the ~~terms of this Section 8.6(c), each Participant also shall be entitled to the benefits of Section 8.7 as though it were the Noteholder. In the event that a Noteholder sells a participation~~ extent provided in such ~~Noteholder’s~~ Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of an Assignor's rights and obligations under this Agreement, such ~~Noteholder~~Assignor shall cease to be a party hereto) but shall retain such rights to indemnification and expense reimbursement to which it was entitled at such time. (d) Notwithstanding any provision of Section 10.6(c) to the contrary, for so long as it is a requirement of Dutch law that each Lender be a Professional Market Party, (i) any Assignor shall, at least 5 Business Days prior to the date of any proposed assignment, provide to the Borrower and the Administrative Agent information in respect of the prospective Assignee sufficient to enable the Borrower to verify the Professional Market Party status of such Assignee and (ii) no such assignment shall be permitted unless the Assignee is a Verifiable Professional Market Party or unless the Borrower determines that such Assignee qualifies as a Professional Market Party; provided that the Borrower shall be deemed to have made such determination if, on or prior to the fifth Business Day after the Assignor has provided the information described in clause (i) above, the Borrower has not made a good faith determination, based on an opinion of reputable Dutch counsel, and notified the Administrative Agent and the Assignor thereof (together with a copy of such opinion of counsel) in writing, that (x) the Assignee does not qualify as a Professional Market Party or (y) the Borrower is unable to determine whether the Assignee qualifies as a Professional Market Party. (e) The Administrative Agent shall, on behalf of ~~Issuer~~the Borrower, ~~shall~~ maintain at its address referred to in Section 10.2 a copy of each Assignment and Acceptance delivered to it and a register ~~on which it enters~~ (the ~~name~~"Register") for the recordation of the names and addresses of the Lenders and the Commitment of each Lender, ~~address~~ as well as the interest rate, the currency and ~~interest~~ the principal amount of the Loans owing to each Lender, in each case, from time to time, giving effect to any reductions of Commitments and any prepayments of Loans made in accordance with the terms hereof. 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 the Notes evidencing the Loans recorded therein for all purposes of this ~~Agreement~~ Agreement. Any assignment of any Loan shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all ~~Participants. Each Noteholder~~ or part of a Loan shall ~~refuse to register any transfer~~ be registered on the Register only upon surrender for registration of ~~any participation in violation~~ assignment or transfer, by way of an endorsement (endoso) and delivery of the ~~foregoing restrictions~~Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes shall be issued to the restrictions set forth in Section 8.6(e) or the restrictions set forth in the Note. If any such participation is in certificated form, it shall bear the following legend: THIS PARTICIPATION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCES. THE PARTICIPATION (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE SECURITIES ACT AND THE PARTICIPATION EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE PARTICIPATION EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A OR (2) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”)), IF, IN THE CASE OF (2), PRIOR TO SUCH TRANSFER, THE TRANSFEREE FURNISHES THE ISSUER AND THE NOTEHOLDER A SIGNED LETTER FROM THE TRANSFEREE CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE NOTEHOLDER) OR (B) TO THE ISSUER OR ITS SUBSIDIARIES AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES; PROVIDED THAT IN NO EVENT MAY ANY TRANSFER OF A PARTICIPATION BE MADE IF SUCH TRANSFER, OR SUCH TRANSFER TOGETHER WITH ANY PRIOR TRANSFERS, WOULD TRIGGER REGISTRATION REQUIREMENTS UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED OF THE ISSUER OR ANY SUBSIDIARY OR OTHER AFFILIATE OF THE ISSUERdesignated Assignee. (df) Upon its receipt of an Assignment and Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), 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. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~8.6~~ 10.6 concerning assignments ~~of Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a ~~Noteholder of any Note~~ Lender to any Federal Reserve Bank in accordance with Applicable Law. (e) The Notes have not been registered under the United States Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws, and, accordingly, may not be offered or sold except as set forth in the following sentence. The Notes were originally issued in a transaction exempt from registration under section 5 of the Securities Act and neither the Note nor any portion thereof may be offered, sold or otherwise transferred in the absence of such registration or an applicable exemption therefrom. (f) Notwithstanding Section 8.6(a), 8.6(b), 8.6(c) and 8.6(e), if at any time the Notes (as defined in the UST Facility) are registered under the Securities Act or exchanged for a note that is entitled to demand, shelf or piggyback registration rights, then the Note will be entitled to demand, shelf, and piggyback registration rights no less favorable than those of the Notes under the UST Facility. (g) Subject to Section 8.1, if there is more than one Noteholder pursuant to Section 8.6(b), any (i) waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document or (ii) any advice, consent, vote, action, direction or other matter to be taken, not taken or determined under this Agreement or any other Secured Note Document by the Noteholders, in the case of each of clauses (i) and (ii) shall require the consent or approval of the majority of Noteholders (by Outstanding Principal as of the date of such determination); provided that the unanimous consent of all Noteholders shall be required with respect to any such waiver, amendment, modification, supplement, restatement or other revision to this Agreement or any other Secured Note Document that is a UST Non-Binding Amendmentlaw. (h) The ~~Issuer shall be deemed to have satisfied its obligation to provide~~ Borrower and each Guarantor agrees, upon receipt of written notice from the relevant Lender and return of any ~~Noteholder (other than the Initial Noteholder) with any report, notice, financial statement or other information required~~ Notes to be ~~provided under this Agreement or~~ replaced, to execute and deliver Notes to any ~~other Secured Note Document, by making such report, notice, financial statement or other information available by electronic media, bulletin board service or internet website~~ Lender requiring Notes to facilitate transactions of the extent such action does not conflict with the terms of this Agreement or Applicable Law. In connection with providing access to the Issuer’s internet website, the Issuer may take reasonable measures to ensure that only then current Noteholders may access such information including, without limitation, requiring registration, a confidentiality agreement, evidence of ownership and acceptance of a disclaimertype described in paragraph (f) above.

Appears in 1 contract

Samples: Term Loan Agreement (Cemex Sa De Cv)

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