Common use of Risk Participation Clause in Contracts

Risk Participation. (a) Prior to the occurrence of a Reallocation Event, all payments of principal, accrued interest and fees, including all optional and mandatory prepayments of principal made pursuant to Section 1.7 and 1.8 of this Agreement, shall be applied in accordance with the terms of this Agreement (other than this Section 9.25). (b) On the date of a Reallocation Event, the Lenders shall automatically be deemed to have purchased and sold (without any obligation to advance funds), effective as of the date of such Reallocation Event, sufficient participations in the other Loans so that, as a result of such purchases and sales, all of the Lenders of each Loan will hold an interest in each of the Revolving Loans in proportion to their respective Reallocation Percentages. (c) After the occurrence of a Reallocation Event, subject to subsection 1.10(c), all payments made with respect to the Loans and proceeds of Collateral securing the Loans shall be applied by the Agents to each Loan and distributed by the Agents to all of the Lenders in accordance with their respective Reallocation Percentages (it being understood that neither payments made by the Canadian Borrower nor proceeds of the Canadian Borrower’s or any of its Subsidiary’s shall be applied to the US Loans; it being understood and agreed, however, that in the case of any such Foreign Subsidiary all of the outstanding voting equity interest of which are owned by a Credit Party that is incorporated or otherwise organized under the laws of a State of the United States of America, payments with respect to or proceeds of 65% of such Subsidiary’s outstanding voting equity interest and 100% of such Foreign Subsidiary’s outstanding non-voting equity interest may be applied to the US Loans). (d) Each Lender holding a participation acquired pursuant to this Section 9.25 shall be deemed to be a holder of such participation for all purposes of this Agreement. (e) Each Lender’s obligations to purchase participations or to make post-Reallocation Event advances under this Agreement are, subject to all applicable laws, absolute and unconditional, shall be made without setoff, counterclaim or deduction of any kind, and shall not be subject to the defense of commercial frustration or failure of performance by any Credit Party or any so-called suretyship or similar equitable or legal discharges or defenses, including, without limitation, (i) the financial condition of any Credit Party at any time, (ii) the insolvency or bankruptcy of any Credit Party or the inability of any Credit Party to pay its debts as they accrue, (iii) the discharge of any obligations of any Credit Party in any bankruptcy or other insolvency proceeding, (iv) the invalidity of any documents evidencing or securing any obligations of any Credit Party under any of the Loan Documents, (v) any action or inaction of any Agent or any other Lenders under any of the Loan Documents, including the release or other disposition of Collateral or lack of diligence in collection or realization for any obligations of any Credit Party, (vi) the dissolution or non-existence of any Credit Party as a legal entity, (vii) any amendment, renewal or extension in respect of any of the Loan Documents, (viii) the adequacy of the Collateral to satisfy all or any of the Obligations, (ix) the loss or non-existence of any subrogation rights on behalf of any Lender, or (x) any fraud or misappropriation of funds or property by or on behalf of any Credit Party. (f) All purchases of participations pursuant to this Section 9.25 shall be without recourse or warranty of any kind or nature to the Lenders selling such participations, other than warranties of title and non-encumbrance with respect to the participations being purchased and sold. For the avoidance of doubt in respect of any participation transferred under this Section 9.25, subject to clause (d) of this Section 9.25, the transferor of such participation shall, for purposes of this Agreement, remain the Lender of record. (g) The Credit Parties shall have no obligations under this Section 9.25.

Risk Participation. (a) Prior to Upon the occurrence earlier of a Reallocation EventSubstantial Liquidation or the Determination Date, if all payments of principal, accrued interest and fees, including all optional and mandatory prepayments of principal made pursuant to Section 1.7 and 1.8 of this Agreement, shall be applied Foreign Liabilities have not been repaid in accordance with the terms of this Agreement full (other than this Section 9.25the Other Liabilities of the Foreign Borrowers and their Subsidiaries), then each Domestic Lender (or its Lender Affiliates) shall purchase from the Foreign Lenders (on the date of Substantial Liquidation or the Determination Date, as applicable) such portion of such Foreign Liabilities (other than Other Liabilities relating to the Foreign Borrowers and their Subsidiaries) so that such Lender (and its applicable Lender Affiliates) shall, after giving effect to any such purchases, hold its Liquidation Percentage of all such outstanding Foreign Liabilities and all other Obligations. (b) On Upon the earlier of Substantial Liquidation or the Determination Date, if all Obligations of the Domestic Borrowers (excluding those Obligations relating to the Foreign Liabilities or the Other Liabilities) have not been repaid in full, then each Foreign Lender (or its Lender Affiliates) shall purchase from the Domestic Lenders (on the date of a Reallocation EventSubstantial Liquidation or the Determination Date, the Lenders shall automatically be deemed as applicable) such portion of such Obligations so that such Lender (and its Lender Affiliates) shall, after giving effect to have purchased and sold (without any obligation to advance funds)such purchases, effective as hold its Liquidation Percentage of all outstanding Obligations of the date Domestic Borrowers and the Foreign Liabilities. (c) All purchases of Obligations under this Section 9.17 shall be at par, for cash, with no premium, discount or reduction and each such Reallocation Eventpurchase shall be evidenced by an appropriate Assignment and Assumption. (d) No Lender shall be responsible for any default of any other Lender in respect of any other Lender’s obligations under this Section 9.17, sufficient participations in nor shall the other Loans so that, obligations of any Lender hereunder be increased as a result of such purchases and sales, all default of any other Lender. Each Lender shall be obligated to the extent provided herein regardless of the Lenders of each Loan will hold an interest in each of the Revolving Loans in proportion to their respective Reallocation Percentages. (c) After the occurrence of a Reallocation Event, subject to subsection 1.10(c), all payments made with respect to the Loans and proceeds of Collateral securing the Loans shall be applied by the Agents to each Loan and distributed by the Agents to all of the Lenders in accordance with their respective Reallocation Percentages (it being understood that neither payments made by the Canadian Borrower nor proceeds of the Canadian Borrower’s or any of its Subsidiary’s shall be applied to the US Loans; it being understood and agreed, however, that in the case failure of any such Foreign Subsidiary all of the outstanding voting equity interest of which are owned by a Credit Party that is incorporated or otherwise organized under the laws of a State of the United States of America, payments with respect other Lender to or proceeds of 65% of such Subsidiary’s outstanding voting equity interest and 100% of such Foreign Subsidiary’s outstanding non-voting equity interest may be applied to the US Loans). (d) Each Lender holding a participation acquired pursuant to this Section 9.25 shall be deemed to be a holder of such participation for all purposes of this Agreementfulfill its obligations hereunder. (e) Each Lender’s Lender shall execute such instruments, documents and agreements and do such other actions as may be necessary or proper in order to carry out more fully the provisions and purposes of this Section 9.16 and the purchase of Obligations or the Foreign Liabilities, as applicable, as provided herein. (f) The obligations to purchase participations or to make post-Reallocation Event advances of each Lender under this Agreement are, subject to all applicable laws, absolute Section 9.17 are irrevocable and unconditional, shall be made without setoff, counterclaim or deduction of any kind, unconditional and shall not be subject to the defense of commercial frustration any qualification or failure of performance by any Credit Party or any so-called suretyship or similar equitable or legal discharges or defenses, exception whatsoever including, without limitation, (i) the financial condition lack of any Credit Party at any time, (ii) the insolvency validity or bankruptcy enforceability of any Credit Party this Agreement or the inability of any Credit Party to pay its debts as they accrue, (iii) the discharge of any obligations of any Credit Party in any bankruptcy or other insolvency proceeding, (iv) the invalidity of any documents evidencing or securing any obligations of any Credit Party under any of the Loan Documents, (v) any action Documents or inaction the existence of any Agent claim, setoff, defense or other right which any other Lenders under Loan Party may have at any time against any of the Loan Documents, including the release or other disposition of Collateral or lack of diligence in collection or realization for any obligations of any Credit Party, (vi) the dissolution or non-existence of any Credit Party as a legal entity, (vii) any amendment, renewal or extension in respect of any of the Loan Documents, (viii) the adequacy of the Collateral to satisfy all or any of the Obligations, (ix) the loss or non-existence of any subrogation rights on behalf of any Lender, or (x) any fraud or misappropriation of funds or property by or on behalf of any Credit Party. (f) All purchases of participations pursuant to this Section 9.25 shall be without recourse or warranty of any kind or nature to the Lenders selling such participations, other than warranties of title and non-encumbrance with respect to the participations being purchased and sold. For the avoidance of doubt in respect of any participation transferred under this Section 9.25, subject to clause (d) of this Section 9.25, the transferor of such participation shall, for purposes of this Agreement, remain the Lender of recordLenders. (g) The Credit Parties No fees required to be paid on any assignment pursuant to Section 10.06 of this Agreement shall have no obligations be payable in connection with any assignment under this Section 9.259.17. (h) Notwithstanding anything contained herein to the contrary, this Section 9.17 is solely between the Lenders and other Credit Parties, and the Loan Parties shall not be a third party beneficiary or have any rights or remedies in respect of this Section 9.17, including the right to enforce this Section 9.17.