Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that no Credit Party -------- may assign or transfer any of its rights or obligations hereunder without the prior written consent of all the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 2 contracts

Samples: Credit Agreement (Graphic Controls Corp), Credit Agreement (Graphic Controls Corp)

Appears in 2 contracts

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

Appears in 2 contracts

Samples: Credit Agreement (National Tobacco Co Lp), Credit Agreement (National Tobacco Co Lp)

Appears in 2 contracts

Samples: Revolving Credit and Term Loan Agreement (Catalina Lighting Inc), Revolving Credit and Term Loan Agreement (Catalina Lighting Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided~~ however, that no ~~Credit Party --------~~ Borrower may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ the ~~Lenders. Each~~ Lenders (and any attempted such assignment without such consent shall be null and void) and, provided further, that, although any Lender may ~~at any time~~ grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder and the participant shall not constitute a “Lender” hereunder and no Lender may transfer or assign any portion of its Commitments hereunder except as provided in Section 14.03(b) and 14.03(d), provided further, that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Revolving Loan or Revolving Note in which such participant is participating, or reduce the rate or extend the time of payment of interest thereon or Fees (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 14.06(a) shall not constitute a reduction in any rate of interest or Fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions or to Section 14.06(a) was not to reduce the interest or Fees payable hereunder), or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Revolving Loan Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Revolving Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by the Borrower or any other Credit Party of any of its rights ~~hereunder~~ and obligations under this Agreement or ~~under~~ any other Credit Document or (iii) release all or substantially all of the ~~Notes to another financial institution,~~ Pledge and Security Agreement Collateral under the Pledge and Security Agreement (except as expressly provided ~~that~~ in the Credit Documents) supporting the Revolving Loans hereunder in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) to (i) its parent company and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company or to one or more Lenders or (ii) in the case of any Lender that is a fund that invests in loans, any other fund that invests in loans and is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor, (y) assign all or a portion of the assigning Lender’s Revolving Loan Commitment (and related outstanding Obligations thereunder) to an Eligible Transferee, and, in the case of a partial assignment of such Revolving Loan Commitment, such assignment shall be in a minimum amount of $5,000,000 or such lesser amount as is acceptable to the Administrative Agent (and the assignor shall maintain a minimum amount of $5,000,000 for its own account unless the assignor shall assign its entire interest), and all assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, or (z) if such Lender is a Canadian Lender, assign all or a portion of the such Canadian Lender’s Maximum Canadian Dollar Revolving Loan Sub-Commitment and related Canadian Dollar Revolving Loan Sub-Commitment (and related outstanding Obligations thereunder) to an Eligible Transferee, and, in the case of a partial assignment of such Maximum Canadian Dollar Revolving Loan Sub-Commitment, such assignment shall be in a minimum amount of $5,000,000 or such lesser amount as is acceptable to the Administrative Agent (and the assignor shall maintain a minimum amount of $5,000,000 for its own account unless the assignor shall assign its entire interest), and all assignees shall become a party to this Agreement as a Canadian Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time Schedule I-A or Schedule I-B, as the case may be, shall be deemed modified to reflect the Revolving Loan Commitments and the Maximum Canadian Dollar Revolving Loan Sub-Commitments of such new Lender and of the existing Lenders, as applicable, (ii) upon surrender of the old Revolving Notes, if any, new Revolving Notes will be issued to such new Lender and to the assigning Lender (to the extent requested by such Lenders), such new Revolving Notes to be in conformity with the requirements of Section 2.06 (with appropriate modifications) to the extent needed to reflect the revised Revolving Loan Commitments and Maximum Canadian Dollar Revolving Loan Sub-Commitments, as applicable, (iii) the consent of the Administrative Agent ~~and~~ and, if the ~~Borrower~~ Person serving as the Administrative Agent is not a Canadian Lender, any Canadian Lender whose Maximum Canadian Dollar Revolving Loan Sub-Commitment is not exceeded by any other Canadian Lender shall be required in connection with any such assignment pursuant to clause (~~each of~~ y) or clause (z) above (which consents shall not be unreasonably withheld), (xiv) ~~any Lender may assign all or a portion~~ the Administrative Agent shall receive at the time of ~~its Loans and/or Commitments and its rights and obligations hereunder to another Lender~~each such assignment, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $3,500, (v) with respect to clause (z) only, such Eligible Transferee shall be a resident in Canada for the purpose of the Income Tax Act (Canada) or an authorized foreign bank which at all times holds all of its interest in any Canadian Obligations in the course of its Canadian banking business for purposes of subsection 212(13.3) of the Income Tax Act (Canada), or otherwise able to establish to the satisfaction of the Canadian Revolving Loan Borrowers and the Administrative Agent based on applicable law in effect at the time of such assignment that such Eligible Transferee is not subject to deduction or withholding of Canadian Taxes with respect to any payments to such Eligible Transferee of interest, fees, commissions, or any other amount payable by any Canadian Revolving Loan Borrower under the Credit Documents, and (vi) with respect to clause (z) only, no such assignment shall be permitted unless, upon the effectiveness of such assignment, the Revolving Loan Commitment of such Eligible Transferee or its Affiliate equals or exceeds the Maximum Canadian Dollar Revolving Loan Sub-Commitment of such Eligible Transferee, and, provided further, that such transfer or assignment will not be effective until recorded by the Administrative Agent on the Register pursuant to Section 14.15. The Administrative Agent will promptly give the Borrower notice of any assignment to an Eligible Transferee although the failure to give any such notice shall not affect such assignment or result in any liability by the Administrative Agent. To the extent of any assignment pursuant to this Section ~~12.4(b~~14.03(b), ~~(i) Annex 1.1~~ the assigning Lender shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitment or Maximum Canadian Dollar Revolving Loan Sub-Commitment and corresponding Canadian Dollar Revolving Loan Sub-Commitment, as the case may be. At the time of each assignment pursuant to this Section 14.03(b) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable a Section 5.04(b)(ii) Certificate) described in Section 5.04(b). To the extent that an assignment of all or any portion of a Lender’s Revolving Loan Commitments and related outstanding Obligations or this Section 14.03(b) would, at the time of such assignment, result in increased costs or Taxes under Section 2.11, 2.12 or 5.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay or reimburse such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee~~ assignment). (~~which shall result in a direct reduction to the Commitment of the assigning Lender~~c) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any Lender from pledging its Revolving Loans and Revolving Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve ~~Bank.~~ Bank and, with the consent of the Administrative Agent, any Lender which is a fund may pledge all or any portion of its Revolving Loans and Revolving Notes to its trustee in support of its obligations to its trustee. No pledge pursuant to this clause (c) ~~Notwithstanding~~ shall release the transferor Lender from any ~~other provisions~~ of ~~this Section 12.4, no transfer or assignment of the interests or~~ its obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any Statehereunder. (d) ~~Each~~ So long as no Event of Default has occurred and is continuing, no RL Lender ~~initially party to this Agreement hereby represents~~that at the applicable time has, ~~and each Person~~ or that ~~became~~ has an Affiliate that has, a ~~Lender pursuant to~~ Maximum Canadian Dollar Revolving Loan Sub-Commitment may assign all or any portion of its Revolving Loan Commitment unless the assignment includes an assignment ~~permitted by this Section 12 will, upon its becoming party~~ of all or the applicable portion of both the Maximum Canadian Dollar Revolving Loan Sub-Commitment and the Canadian Dollar Revolving Loan Sub-Commitment of such Revolving Loan Commitment to ~~this Agreement, represent that it~~ the applicable Eligible Transferee or an Affiliate of such Eligible Transferee (the “Assignee Canadian Lender”) and the Assignee Canadian Lender is a ~~commercial lender, other financial institution~~ resident in Canada for the purpose of the Income Tax Act (Canada) or ~~other "accredited" investor (as defined~~ an authorized foreign bank which at all times holds all of its interest in ~~SEC Regulation D) which makes or acquires loans~~ any Canadian Obligations in the ~~ordinary~~ course of its Canadian banking business for purposes of subsection 212(13.3) of the Income Tax Act (Canada), or is otherwise able to establish to the satisfaction of the Canadian Revolving Loan Borrowers and ~~that it will make or acquire Loans for its own account~~ the Administrative Agent based on applicable law in effect at the ~~ordinary course~~ time of such ~~business~~assignment that such Assignee Canadian Lender is not subject to deduction or withholding of Canadian Taxes with respect to any payments to such Assignee Canadian Lender of interest, ~~provided --------~~ fees, commissions, or any other amount payable by any Canadian Revolving Loan Borrower under the Credit Documents. Notwithstanding the foregoing provisions of this Section 14.03(d), an RL Lender that at the applicable time has, or that has an Affiliate that has, a Maximum Canadian Dollar Revolving Loan Sub-Commitment may assign such portion, if any, of its Revolving Loan Commitment in excess of the Maximum Canadian Dollar Revolving Loan Sub-Commitment, subject to the ~~preceding clauses (a) and (b~~requirements of Section 14.03(b)~~, the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control~~. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 2 contracts

Samples: Credit Agreement (Host Marriott L P), Credit Agreement (Host Marriott Corp/)

Appears in 2 contracts

Samples: Credit Agreement (Global Marine Inc), Credit Agreement (Global Marine Inc)

Benefit of Agreement. (a) ~~This Agreement~~ By its signature, the Collateral Agent hereby represents and warrants to the other parties hereto that it is duly authorized to execute this Consent for and on behalf of the Secured Parties and that such Secured Parties are bound hereby. The Collateral Agent is entering into this Consent as agent for and on behalf of the other Secured Parties and, accordingly, each of the Secured Parties shall be ~~binding -------------------- upon~~ entitled to the benefit hereof and ~~inure~~ be subject to the obligations hereof, as if it was a party hereto. (b) This Consent shall enure to the benefit of and be ~~enforceable by~~ binding upon the parties hereto, the Secured Parties and their respective successors and assigns of the parties hereto, provided that no Credit Party -------- may assign or transfer any of its rights or obligations hereunder without the prior written consent of all the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes permitted pursuant to ~~another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under~~ this Agreement or ~~any of~~ the ~~other Credit~~ Intercreditor Agreement. The parties agree that, if and for so long as the Security Documents (remain in effect, the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant Collateral Agent shall be entitled and obligated to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or to any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or successor agent under the ~~Notes, any reference in this~~ Intercreditor Agreement ~~or the Notes to~~ so long as such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected successor agent is bound by the ~~assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form~~ terms of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve BankConsent. (c) ~~Notwithstanding~~ Upon the request of the Carrier, the Shipper agrees to enter into a replacement consent and acknowledgement agreement on the same terms and conditions as this Consent, mutatis mutandis, with any other ~~provisions of this Section 12.4, no transfer~~ secured lenders or ~~assignment of~~ their representative(s) which are providing any replacement financing to a Permitted Transferee which replaces the ~~interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require~~ credit facilities established by the ~~Borrower or Holdings to file a registration statement with~~ Credit Agreement and the ~~SEC or to qualify the Loans under the "Blue Sky" laws of any State~~Other Senior Debt. (d) ~~Each Lender initially party~~ This Agreement is not intended to, and shall not, create any rights in favour of the Carrier that are in addition to or otherwise different from those contained in the Assigned Agreements and the Carrier does not obtain any rights hereunder, except for the rights under Section 6.11(b). The Carrier hereby consents to the arrangements and agreements contemplated by this Agreement ~~hereby represents,~~ and ~~each Person that became a Lender pursuant~~ to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course any future exchange of ~~its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject~~ information related to the ~~preceding clauses (a) and (b),~~ Loan Parties which is made between the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Collateral Agent and the ~~Lenders may treat each Person whose name~~ Shipper and which is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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 noticerequired hereunder. (f) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 2 contracts

Samples: Credit Agreement (Kinder Morgan, Inc.), Credit Agreement (Kinder Morgan, Inc.)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or -------- transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections ~~1.10, 1.11, 2.6~~ 1.10 and ~~4.4~~ 3.04 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, ~~provided,~~ provided further, that no ~~-------- -------~~ Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of ~~the application of~~ any prepayment of, or the method of any application of any prepayment to, the ~~amortization of the Term~~ Loans shall not constitute ~~a waiver of any Scheduled Repayment or~~ an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees ~~thereon~~ (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment,~~ Commitment or a mandatory ~~prepayment,~~ prepayment shall not constitute a change in the terms of any Commitment), (ii) release ~~any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release~~ all or substantially all of the Collateral or (iviii) consent to the assignment or transfer by ~~any Credit Party~~ the Borrower of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, ~~with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ (x) any Lender may assign all or a portion of its outstanding B Term Loans and/or ~~Commitments~~ C Term Loans, its B Term Commitment, Revolving Commitment and/or Acquisition Commitment and its rights and obligations hereunder (which assignment does not have to ~~another Lender~~be pro rata among the Facilities) to (i) one or more -------- Lenders and/or Affiliates of such Lender which are Eligible Transferees or (ii) in the case of any Lender that is a fund that invests in loans, any other fund that invests in loans and is managed and/or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor, and (y) with the consent of the Administrative Agent and, if no Default under Section 8.01 or 8.05 or Event of Default exists, the Borrower (which consents shall not be unreasonably withheld), any Lender may assign all or a portion of its outstanding B Term Loans and/or ~~Commitments~~ C Term Loans, its B Term Commitment, Revolving Commitment and/or Acquisition Commitment and its rights and obligations hereunder to one or more Eligible Transferees (~~including one~~ treating any fund that invests in loans and any other fund that invests in loans and is managed and/or advised by the same investment advisor of such fund or ~~more Lenders~~by an Affiliate of such investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence ~~(i)~~ shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender ~~are~~ is so ~~assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility~~assigned. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section ~~12.4(b~~11.04(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement ~~substantially in~~ and giving the ~~form of Exhibit D (appropriately completed)~~Administrative Agent written notice thereof. In At the ~~event~~ time of any such ~~assignment to a Person not previously a Lender hereunder~~assignment, (i) either the assigning or the assignee Lender shall pay to the Administrative Agent a nonrefundable assignment fee of $~~3,500, and at the time~~ 3,500 (provided that only one assignment fee shall be payable in respect of any reasonably contemporaneous assignment ~~pursuant~~ by a fund that invests in loans to ~~this Section 12.4(b~~any one or more funds that invests in loans and are managed and/or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor), (iii) Annex ~~1.1~~ I shall be deemed to be amended to reflect the ~~Commitment~~ Commitments and Loans of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (iiiii) ~~if any such assignment occurs after~~ upon surrender of the ~~Initial Borrowing Date,~~ old Notes the Borrower ~~will~~ will, at its own expense, issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section ~~1.5~~1.05, provided further that such transfer or ---------------- assignment will not become effective until recorded by the Administrative Agent on the Lender Register pursuant to Section 11.16. ~~Each~~ To the extent of any assignment pursuant to this Section 11.04(b) to a Person which is not already a Lender hereunder and which is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the ~~Borrower agree to execute such documents~~ Administrative Agent the appropriate Internal Revenue Service Forms (~~including without limitation amendments~~ and, if applicable, a Section 3.04 Certificate) described in Section 3.04(b). To the extent that an assignment pursuant to this ~~Agreement and~~ Section 11.04(b) would, at the ~~other Credit Documents) as~~ time of such assignment, result in increased costs under Section 1.10 or 3.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be ~~necessary~~ obligated to ~~effect~~ pay any other increased costs of the ~~foregoing~~type described above resulting from changes after the date of the respective assignment). Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve ~~Bank~~Bank and, with the consent of the Administrative Agent and the Borrower (which consents shall not be unreasonably withheld), any Lender which is a fund may pledge all or any portion of its Loans and Notes to its trustee in support of its obligations to its trustee. (c) Notwithstanding any other provisions of this Section ~~12.4~~11.04, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or ~~Holdings~~ any of its Subsidiaries to (i) file a registration statement with the ~~SEC or to~~ SEC, (ii) qualify the Loans under the "Blue Sky" laws of any ~~State~~State or (iii) integrate such transfer or assignment with a separate securities offering of securities of the Borrower or any of its Subsidiaries. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 11 will, upon its becoming party to this Agreement, represent that it is ~~a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D)~~ an Eligible Transferee which makes or ~~acquires~~ invests in loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided ~~--------~~ that subject to the preceding clauses -------- (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 2 contracts

Samples: Credit Agreement (MJD Communications Inc), Credit Agreement (MJD Communications Inc)

Benefit of Agreement. (a) ~~This~~ The provisions of this Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of the parties hereto and ~~be enforceable by the~~ their respective successors and assigns permitted hereby (including any Affiliate of the ~~parties hereto~~Issuing Lender that issues any Letter of Credit), ~~provided~~ except that ~~no Credit Party --------~~ (i) the Borrowers may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ each Lender (and any attempted assignment or transfer by the ~~Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any~~ Borrowers without such ~~-------- participation, the participant~~ consent shall ~~not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to~~ be ~~those set forth in the agreement executed by such Lender in favor of the participant relating thereto~~null and void) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) ~~release any Guarantor from~~ no Lender may assign or otherwise transfer its rights or obligations ~~under its Guaranty~~ hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the ~~terms thereof~~parties hereto, their respective successors and assigns permitted hereby (~~iii~~including any Affiliate of the Issuing Lender that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) ~~release~~ of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Lender and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or ~~substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any~~ a portion of its rights and obligations under this Agreement ~~or any other Credit Document.~~ (~~b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign~~ including all or a portion of its Commitment and the Loans ~~and/or Commitments and its rights and obligations hereunder~~ at the time owing to ~~another~~ it) with the prior written consent (such consent not to be unreasonably withheld) of: (A) Furniture Brands, provided that no consent of Furniture Brands shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default has occurred and is continuing, any other assignee; (yB) the Administrative Agent; and (C) the Issuing Lender and the Swingline Lender. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender's Commitment or Loans of any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term LoansClass, the ~~Tranche B Term~~ amount of the Commitment or Loans ~~and the Revolving Commitments~~ of the assigning Lender ~~except~~ subject to each such assignment (determined as ~~provided in~~ of the ~~next sentence. No~~ date the Assignment and Assumption Agreement with respect to such assignment ~~pursuant~~ is delivered to the ~~immediately preceding sentence (i~~Administrative Agent) shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder,~~ not be ~~in an aggregate amount~~ less than $5,000,000 unless each of Furniture Brands and the ~~entire Commitment~~ Administrative Agent otherwise consent, provided that no such consent of Furniture Brands shall be required if an Event of Default has occurred and ~~Loans~~ is continuing; (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning ~~Lender are so assigned or~~ Lender's rights and obligations under this Agreement; (iiC) the parties to each assignment shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender execute and deliver to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing Administrative Agent an Assignment ~~Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to~~ and Assumption Agreement, together with a ~~Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment~~ processing and recordation fee of $3,500; and (D) the assignee, ~~and at~~ if it shall not be a Lender, shall deliver to the ~~time of any assignment pursuant~~ Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to ~~this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee~~ whom all syndicate-level information (which ~~shall result~~ may contain material non-public information about the Borrowers, their Related Parties or their respective securities) will be made available and who may receive such information in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity accordance with the ~~requirements of Section 1.5. Each Lender~~ assignee's compliance procedures and applicable laws, including Federal and state securities laws For the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions purposes of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b13.04(b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for term "Approved Fund" has the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.following meaning:

Appears in 1 contract

Samples: Credit Agreement (Furniture Brands International Inc)

Appears in 1 contract

Samples: Credit Agreement (Fremont General Corp)

Benefit of Agreement. (a) ~~This Agreement shall be binding -------------------- upon and inure~~ Any Lender may make, carry or transfer Loans at, to or for the ~~benefit~~ account of, any of ~~and be enforceable by~~ its branch offices or the ~~respective successors and assigns~~ office of ~~the parties hereto~~an Affiliate of such Lender, provided that no ~~Credit Party -------- may assign or transfer any~~ such action shall increase the cost of ~~its rights or obligations hereunder without~~ the ~~prior written consent of all~~ Loans to the ~~Lenders.~~ Borrowers. (b) Each Lender may ~~at any time grant participations in any~~ assign a portion of its ~~rights hereunder or under any of the Notes to another financial institution~~interests, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this ~~Agreement or any other Credit Document. (b) Notwithstanding the foregoing~~Agreement, ~~with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign~~ including all or a portion of ~~its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y)~~ any ~~Lender may assign all or a portion~~ of its ~~Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees~~ Revolving Credit Loan Commitment (including ~~one or more Lenders). Any assignment pursuant~~ without limitation its commitment to ~~this Section 12.4(b~~participate in Letters of Credit) ~~need not be ratable as among~~ to any Eligible Assignee; provided, however, that (i) the ~~Tranche A Term Loans, the Tranche B Term Loans and~~ amount of the Revolving ~~Commitments~~ Credit Loan Commitment of the assigning Lender ~~except~~ subject to each assignment (determined as ~~provided in~~ of the ~~next sentence. No~~ date the assignment ~~pursuant~~ and acceptance with respect to such assignment is delivered to the ~~immediately preceding sentence (i~~Agent) shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder,~~ not be ~~in an aggregate amount~~ less than an amount equal to $5,000,000 ~~unless the entire Commitment and Loans of the assigning Lender are so assigned~~ or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lendersgreater integral multiples thereof, and (ii) if the parties to each such assignment shall execute and deliver to the Agent and the Borrowers an Assignment and Acceptance, together with a Revolving Credit Note or Revolving Credit Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and 84 recordation fee of $3,000. Borrowers shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Revolving Credit Loan Commitment of $10,000,000; provided, however, no such minimum amount shall be required with respect to any such assignment ~~occurs~~ made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the ~~Initial Borrowing Date~~notice and the Assignment and Acceptance, Borrowers, at their own expense, shall execute and deliver to the ~~Borrower will issue~~ Agent, in exchange for the surrendered Revolving Credit Note or Revolving Credit Notes, a new Revolving Credit Note or Revolving Credit Notes to the ~~respective assignee~~ order of the Eligible Assignee in a principal amount equal to the applicable Revolving Credit Loan Commitment assumed by it pursuant to such Assignment and Acceptance, as well as a and new Revolving Credit Note or Revolving Credit Notes to the assigning Lender in the amount of its retained Revolving Credit Loan Commitment. Such new Revolving Credit Notes to the Eligible Assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be ~~necessary~~ in an aggregate principal amount equal to ~~effect~~ the ~~foregoing. Nothing~~ aggregate principal amount of such surrendered Revolving Credit Note or Revolving Credit Notes, shall be dated the date of the surrendered Revolving Credit Note or Revolving Credit Notes that they replace, and shall otherwise be in ~~this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank.~~substantially the form attached hereto as Exhibit C. (c) ~~Notwithstanding~~ No assignment of all or any ~~other provisions~~ portion of this ~~Section 12.4, no transfer or assignment of the interests or obligations of~~ Agreement by any Lender ~~hereunder or any grant of participation therein~~ shall be permitted without compliance with the provisions of Section 2.12(b) hereof, or if such ~~transfer~~assignment would violate any applicable securities law. In connection with its execution and delivery hereof each Lender represents that it is acquiring its interest herein for its own account for investment purposes and not with a view to further distribution thereof, ~~assignment or grant would~~ and shall require any proposed assignee to furnish similar representations to the ~~Borrower or Holdings to file a registration statement with~~ Agent and the ~~SEC or to qualify the Loans under the "Blue Sky" laws of any State~~Borrowers. (d) Each Lender ~~initially party to this Agreement hereby represents~~may, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution without the consent of Borrowers or ~~other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in~~ the ~~ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that~~ Agent but subject to the ~~preceding clauses (a)~~ provisions of Section 2.07, sell participations in its respective Revolving Credit Loan Commitment and (bLetter of Credit commitments to such Lender's Affiliate(s), but sales of participations to Persons other than such Lender's Affiliates shall be made only with the ~~disposition~~ prior consent of the Agent and in all events subject to said section. Provided, however, that (i) no Lender may sell a participation in its aggregate Revolving Credit Loan Commitment and Letter of Credit commitments (after giving effect to any ~~promissory notes or other evidences~~ permitted assignment hereof) unless it retains an aggregate exposure of ~~or interests in Indebtedness held by~~ at least $10,000,000 (except that no such limitation shall be applicable to any such participation sold at any time there exists an Event of Default hereunder), (ii) such Lender's obligations under this Agreement shall remain unchanged, (iii) such Lender shall ~~at all times be within its exclusive control~~remain solely responsible to the other parties hereto for the performance of such obligations, and (v) Borrowers and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations as provided in this Agreement and the other Loan Documents. Each Lender shall promptly notify in writing the Agent of any sale of a participation hereunder. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section 12.12, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrowers, Guarantors, or the Consolidated Entities furnished to such Lender by or on behalf of ~~and as agent~~ Borrowers, Guarantors, or any of the Consolidated Entities. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower shall maintain at its Payment Office a copy~~ purpose of ~~each Assignment Agreement delivered~~ making any necessary credit judgments with respect to ~~it (as required hereby)~~ this credit facility and ~~a register (~~not to use the ~~"Register") for --------~~ information in any manner prohibited by any law, including without limitation, the ~~recordation~~ securities laws of the ~~names and addresses~~ United States. The proposed participant or assignee shall agree in writing not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the ~~Lenders~~ confidential nature of the information and agree to maintain the confidentiality thereof as described herein, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrowers and the ~~registered owners of~~ Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeany regulatory agency or authority with proper jurisdiction. The ~~entries in the Register shall be conclusive, in the absence of manifest error~~proposed participant or assignee, and ~~the Borrower~~such representatives, shall further agree to return to Borrowers all documents or other written material and copies thereof received from any Lender, the Agent ~~and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan~~ or ~~Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice~~ Borrowers relating to ~~the contrary. 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~~such confidential information. (f) Any ~~Non-U.S.~~ Lender ~~that could become completely exempt from withholding~~ may at any time assign all or any portion of ~~any United States federal income taxes~~ its rights in ~~respect of payment of any interest due to such Non-U.S. Lender under~~ this Agreement ~~or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent),~~ and the ~~Borrower agrees thereupon,~~ Revolving Credit Notes issued to ~~exchange~~ it to a Federal Reserve Bank; provided that no such assignment shall release the assigning Lender from any ~~Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on~~ of its obligations hereunder. ENTERED INTO the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes.~~first above written. BORROWERS:

Appears in 1 contract

Samples: Credit Agreement (Central Parking Corp)

Appears in 1 contract

Samples: Credit Agreement (Scovill Holdings Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Commitments, Letter of Credit Obligations and the Loans at the time owing to ~~another~~ it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) the Agent and Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld) unless such assignment is to an Affiliate of the assigning Lender or, in the case of Borrower, unless an Event of Default has occurred and is continuing, (ii) the amount of the Commitments or Loans or Letter of Credit Obligations, of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent) shall not be less than $10,000,000 (or the total amount of such Lender's Commitment), (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $3,000, and (yiv) any assignment of the Commitments or Loans hereunder shall be made simultaneously with a pro rata assignment of commitments and loans of such Lender pursuant to the Subsidiary Credit Agreement unless the Borrower and the Agent otherwise agree. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Commitments, the Loans and the Letter of Credit Obligations, as the case may ~~assign~~ be, of $10,000,000 (unless the Lender is assigning its entire Commitment); provided, however, no such minimum amount shall be required with respect to any such assignment made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Borrower or the Agent, sell participations to one or more banks or other entities in all or a portion of its rights and/or obligations under this Agreement (including all or a portion of its Commitments, the Letter of Credit Obligations and the Loans ~~and/or~~ owing to it and the Notes held by it), provided, however, that (i) no Lender may sell a participation in its aggregate Commitments (after giving effect to any permitted assignment hereof) in an amount in excess of fifty percent (50%) of such aggregate Commitments, provided, however, sales of participations to an Affiliate of such Lender shall not be included in such calculation; provided, however, no such maximum amount shall be applicable to any such participation sold at any time there exists an Event of Default hereunder, (ii) such Lender's obligations under this Agreement shall remain unchanged, (iii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iv) the participating bank or other entity shall not be entitled to the benefit (except through its selling Lender) of the cost protection provisions contained in Article III of this Agreement, and (v) Borrower and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Borrower relating to the Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of ~~and as agent~~ Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower shall maintain at its Payment Office a copy~~ purpose of ~~each Assignment Agreement delivered~~ making any necessary credit judgments with respect to ~~it (as required hereby)~~ this credit facility and ~~a register (~~not to use the ~~"Register") for --------~~ information in any manner prohibited by any law, including without limitation, the ~~recordation~~ securities laws of the ~~names and addresses~~ United States. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the ~~Lenders~~ confidential nature of the information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the ~~registered owners of~~ Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeany regulatory agency or authority with proper jurisdiction. The ~~entries in the Register~~ proposed participant or assignee shall ~~be conclusive, in the absence of manifest error,~~ further agree to return all documents or other written material and ~~the Borrower~~copies thereof received from any Lender, the Agent ~~and the Lenders may treat each Person whose name is recorded in the Register as the owner~~ or Borrower relating to such confidential information unless otherwise properly disposed of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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~~such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 3.07(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of increased costs or reduced rate of return pursuant to Section 3.10 or any ~~interest due~~ Lender determines that LIBOR is unascertainable or illegal pursuant to ~~such Non-U.S.~~ Section 3.08 or Section 3.09, or any Lender ~~under~~ makes a claim for increased costs or determines that its participation in any Letter of Credit is illegal pursuant to Section 3.09, or (iii) any Lender shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the ~~Note(s) held~~ Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes~~ of such assignment; provided, however, Lenders subject to this Section 10.06 shall be treated in a ~~Lender, Qualified Non-U.S. Lender Notes~~substantially identical manner.

Appears in 1 contract

Samples: Credit Agreement (Haverty Furniture Companies Inc)

Benefit of Agreement. (a) ~~This Agreement shall be binding -------------------- upon and inure~~ Any Lender may make, carry or transfer Loans at, to or for the ~~benefit~~ account of, any of ~~and be enforceable by~~ its branch offices or the ~~respective successors and assigns~~ office of ~~the parties hereto~~an Affiliate of such Lender, provided that no ~~Credit Party -------- may assign or transfer any of its rights or obligations hereunder without~~ such action shall increase the ~~prior written consent of all the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any~~ cost of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled Loans to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit DocumentBorrower. (b) ~~Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder to another Lender, and~~ under this Agreement (~~y) any Lender may assign~~ including all or a portion of any of its ~~Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees~~ commitments (including ~~one or more Lenders). Any~~ without limitation its commitment to participate in Letters of Credit) and the Loans at the time owing to it and the Notes held by it) to any Eligible As- signee; provided, however, that (i) the Borrower must give its prior written consent to such assignment ~~pursuant to this Section 12.4(b) need~~ (which consent shall not be ~~ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments~~ unreasonably withheld or delayed) unless such assignment is an Affiliate of the assigning Lender ~~except as provided in~~ or unless an Event of Default has occurred and is continuing, (ii) the ~~next sentence. No assignment pursuant to~~ amount of the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans Loan commitments of the assigning Lender ~~are so assigned or~~ subject to each assignment (iidetermined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent) shall not be ~~effective if~~ less than an amount equal to $5,000,000 or greater integral multiples thereof, and (iii) the ~~result thereof~~ parties to each such assignment shall execute and deliver to the Agent and the Borrower an Assignment and Acceptance, together with a Note or Notes subject to such assignment and, un- less such assignment is ~~that~~ to an Affiliate of such Lender, a process- ing and recordation fee of $3,000. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the ~~Notes to~~ Agent in connection with such ~~assigning Lender~~ assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall ~~thereafter refer to such Lender~~ be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and ~~to the respective assignee~~ to the extent of ~~their respective interests~~ the interest assigned by such Assignment and Acceptance, have the ~~respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same~~ rights and ~~benefits as it would if it were such assigning Lender~~obligations of a Lender under this Agreement. ~~Each assignment pursuant to this Section 12.4(b) shall be effected by~~ Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and ~~the assignee Lender executing an Assignment Agreement substantially in the form~~ Acceptance, a minimum aggregate amount of ~~Exhibit D (appropriately completed). In the event~~ Loan commitments of $5,000,000; provided, however, no such minimum amount shall be required with respect to any such assignment ~~to a Person not previously a Lender~~ made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, ~~either the assigning or the assignee Lender~~ Borrower, at its own expense, shall ~~pay~~ execute and deliver to the ~~Agent~~ Agent, in exchange for the surrendered Note or Notes, a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Note or Notes to the ~~respective~~ order of such assignee in a principal amount equal to the applicable Loan commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in ~~conformity with~~ the ~~requirements~~ amount of ~~Section 1.5~~its retained Loan commitment. ~~Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as~~ Such new Note or Notes shall be ~~necessary~~ in an aggregate principal amount equal to ~~effect~~ the ~~foregoing. Nothing~~ aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes that they replace, and shall otherwise be in ~~this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank~~substantially the form attached hereto. (c) ~~Notwithstanding~~ No assignment of all or any ~~other provisions~~ portion of this ~~Section 12.4, no transfer or assignment of the interests or obligations of~~ Agreement by any Lender ~~hereunder or any grant of participation therein~~ shall be permitted without compliance with the provisions of Section 2.12(b) hereof, or if such ~~transfer~~assignment would violate any applicable securities law. In connection with its execution and delivery hereof each Lender represents that it is acquiring its interest herein for its own account for investment purposes and not with a view to further distribution thereof, ~~assignment or grant would~~ and shall require any proposed assignee to furnish similar representations to the ~~Borrower or Holdings to file a registration statement with~~ Agent and the ~~SEC or to qualify the Loans under the "Blue Sky" laws of any State~~Borrower. (d) Each Lender ~~initially party to this Agreement hereby represents~~may, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution without the consent of Borrower or ~~other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in~~ the ~~ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that~~ Agent but subject to the ~~preceding clauses (a)~~ provisions of Section 2.08, sell participations in its respective Loan and (bLetter of Credit commitments to such Lender's affiliate(s), but sales of participations to Persons other than such Lender's affiliates shall be made only with the ~~disposition~~ prior consent of the Agent and in all events subject to said section. Provided, however, that (i) no Lender may sell a participation in its aggregate Loan and Letter of Credit commitments (after giving effect to any ~~promissory notes or other evidences~~ permitted assignment hereof) unless it retains an aggregate exposure of ~~or interests in Indebtedness held by~~ at least $5,000,000 (except that no such limitation shall be applicable to any such participation sold at any time there exists an Event of Default hereunder, (ii) such Lender's obligations under this Agreement shall remain unchanged, (iii) such Lender shall ~~at all times be within its exclusive control~~remain solely responsible to the other parties hereto for the performance of such obligations, and (v) Borrower and the Agent and other Lenders shall continue to deal solely and directly with each 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 Borrower relating to the Loan and to approve any amendment, modification or waiver of any provisions of this Agreement. Each Lender shall promptly notify in writing the Agent and the Borrower of any sale of a participation hereunder. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section 9.12, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or its Subsidiaries furnished to such Lender by or on behalf of ~~and as agent~~ Borrower or any Subsidiary. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower shall maintain at its Payment Office a copy~~ purpose of ~~each Assignment Agreement delivered~~ making any necessary credit judgments with respect to ~~it (as required hereby)~~ this credit facility and ~~a register (~~not to use the ~~"Register") for --------~~ information in any manner prohibited by any law, including without limitation, the ~~recordation~~ securities laws of the ~~names and addresses~~ United States. The proposed participant or assignee shall agree in writing not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the ~~Lenders~~ confidential nature of the information and agree to maintain the confidentiality thereof as described herein, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the ~~registered owners of~~ Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeany regulatory agency or authority with proper jurisdiction. The ~~entries in the Register shall be conclusive, in the absence of manifest error~~pro- posed participant or assignee, and ~~the~~ such representatives, shall further agree to return to Borrower at Borrower's expense all documents or other written material and copies thereof received from any Lender, the Agent ~~and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan~~ or ~~Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice~~ Borrower relating to ~~the contrary. 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~~such confiden- tial information. (f) Any ~~Non-U.S.~~ Lender ~~that could become completely exempt from withholding~~ may at any time assign all or any portion of ~~any United States federal income taxes~~ its rights in ~~respect of payment of any interest due to such Non-U.S. Lender under~~ this Agreement or and the Notes if issued to it to a Federal Reserve Bank; provided that no such assignment shall release the ~~Note(s) held by such Non-U.S.~~ Lender ~~were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange~~ from any ~~Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes~~of its obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (Insituform Technologies Inc)

Benefit of Agreement. ~~(a)~~ This Agreement shall be binding upon -------------------- ~~upon~~ and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that no Credit Party~~ however, Holdings and the Borrowers may -------- ~~may~~ ------- not assign or transfer any of ~~its rights~~ their rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ the ~~Lenders. Each Lender~~ Banks and, provided further, that, although any Bank may ~~at any time~~ transfer, assign or grant ---------------- participations in its rights hereunder, such Bank shall remain a "Bank" for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights~~ Commitments hereunder except as provided in Section 13.04(b)) and the transferee, assignee or ~~under any of~~ participant, as the ~~Notes to another financial institution~~case may be, shall not constitute a "Bank" hereunder and, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no ~~-------- ------- Lender~~ Bank shall ~~transfer,~~ transfer or grant ~~or assign~~ any ---------------- participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan ~~or Note~~ Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any post-default ~~increase~~ in crease in interest rates), ) or reduce the principal amount thereof, or increase ~~such~~ the amount of the participant's ~~participating interest in any Commitment~~ participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment, or a mandatory prepayment,~~ Commitment shall not constitute a change in the terms of such participation, and that an in crease in any ~~Commitment~~Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) ~~release~~ consent to the assignment or transfer by Holdings and the Borrowers of any ~~Guarantor from its~~ of their rights and obligations under ~~its Guaranty except in accordance with the terms thereof,~~ this Agreement or (iii) release all or substantially all of the Collateral or under all of the Security Documents (ivexcept as expressly provided in the Credit Documents) ~~consent to~~ supporting the ~~assignment or transfer by any Credit Party~~ Loans hereunder in which such participant is participating. In the case of any ~~of its~~ such participation, the participant shall not have any rights ~~and obligations~~ under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register Documents (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes participant's rights against such Bank in respect of ~~payment of any interest due~~ such participation to ~~such Non-U.S. Lender under this Agreement or~~ be those set forth in the ~~Notes if the Note(s) held~~ agreement executed by such ~~Non-U.S. Lender were~~ Bank in ~~registered form for United States federal income tax purposes may request~~ favor of the ~~Borrower (through~~ participant relating thereto) and all amounts payable by the ~~Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by~~ Borrowers hereunder shall be determined as if such ~~Non-U.S. Lender, or to issue to~~ Bank had not sold such ~~Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes~~participation.

Appears in 1 contract

Samples: Credit Agreement (SMT Health Services Inc)

Appears in 1 contract

Samples: Credit Agreement (Partnerre LTD)

Benefit of Agreement. ~~(a)~~ This Agreement shall be binding ~~--------------------~~ upon and inure -------------------- to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that no Credit Party --------~~ however, the Borrower may not assign or transfer -------- ------- any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder without the prior written consent of the Lender; provided that Borrower may assign or transfer, without -------- the consent of Lender, all ~~the Lenders. Each Lender may at any time grant participations in any~~ of its ~~rights hereunder~~ rights, obligations and interest under this Agreement to any affiliate of Borrower to which Borrower transfers all of the Security Agreement Collateral so long as the Amended JVA is amended to admit such transferee into the Venture and the transferee executes new loan documents in substantially the form of the Loan Documents with such changes thereto as may be necessary to reflect that the transferee is the borrower and debtor thereunder and otherwise in form and substance satisfactory to the Lender. This Agreement is for the benefit of the Lender and for such other Person or ~~under~~ Persons as may from time to time become or be the holders of any of the ~~Notes to another financial institution~~Indebtedness, ~~provided that in the case of any such -------- participation, the participant shall not have any rights under~~ and this Agreement shall be transferable and negotiable with the same force and effect and to the same extent as the Indebtedness may be transferrable, it being understood that, upon the transfer or assignment by the Lender of any of the ~~other Credit Documents (~~Indebtedness, the ~~participant's rights against such Lender in respect~~ legal holder of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant Indebtedness shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the ~~Collateral or (iv) consent~~ rights granted to the ~~assignment or transfer by any Credit Party of any of its rights and obligations~~ Lender under this ~~Agreement~~ Agreement. The Borrower hereby recognizes and agrees that the Lender may, from time to time, one or more times, transfer all or any ~~other Credit Document. (b) Notwithstanding the foregoing, with the consent~~ portion of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder Indebtedness to one or more ~~Eligible Transferees (including~~ third Persons. Such transfers may include, but are not limited to, sales of participation interests in such Indebtedness in favor of one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially third party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timelenders. The ~~entries in the Register shall be conclusive, in the absence of manifest error,~~ Borrower specifically agrees and ~~the Borrower, the Agent~~ consents to all such transfers and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent)assignments, and the Borrower further waives any subsequent notice of and right to consent to any such transfers and assignments as may be provided under applicable law. The Borrower additionally agrees ~~thereupon,~~ that the purchaser of a participation interest in the Indebtedness will be considered as the absolute owner of a percentage interest of such Indebtedness and that such a purchaser will have all of the rights granted to ~~exchange~~ the purchaser under any ~~Note(s) held by~~ participation agreement governing the sale of such ~~Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes~~participation interest.

Appears in 1 contract

Samples: Loan Agreement (HCS Ii Inc)

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Catalina Lighting Inc)

Appears in 1 contract

Samples: Revolving Credit Agreement (Discount Auto Parts Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders~~. Each~~ , except as permitted by Section 6.01. (b) Any Lender may make, carry or transfer Loans or Letter of Credit Liabilities at ~~any~~ the time ~~grant participations in~~ owing to it at, to or for the account of, any of its ~~rights hereunder~~ branch offices or ~~under any~~ the offices of ~~the Notes to another financial institution~~an Affiliate of such Lender, provided that doing so shall not cause the Borrower to incur any additional costs hereunder at the time of such transfer. (c) Any Lender may assign its rights and delegate its obligations under this Agreement and further may sell participations in all or any part of any Loan or Loans made by it or its Commitment or Letter of Credit Liabilities at the time owing to it or any other interest herein to another bank or other entity; provided that (i) in the case of an assignment, such Lender shall (A) give to the Borrower and the Administrative Agent prior notice thereof (and the Administrative Agent shall promptly notify each Issuing Lender thereof), and, in the case of any assignment, the Borrower, the Issuing Lenders and the Administrative Agent shall, except as set forth in the last sentence of this Section 9.01(c), have consented thereto (each such ~~--------~~ consent not to be unreasonably withheld or delayed) and (B) comply with Section 9.01(e) hereof and thereupon, the assignee (the “Purchasing Lender”) shall have, to the extent of such assignment (unless otherwise provided thereby), the rights and benefits described in Section 9.01(e) hereof, and (ii) #96109338v22 in the case of a participation, except as set forth below, (A) the participant shall not have any rights under this Agreement or any ~~of the~~ other ~~Credit Documents~~ document delivered in connection herewith (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Xxxxxx in favor of the participant relating thereto); provided that a participation agreement may provide that a Lender will not agree to any modification, amendment or waiver of any provision in this Agreement described in subclause (A), (C), or (E) of Section 9.05(a)(ii) without the consent of the participant and (B) all amounts payable by the Borrower ~~hereunder~~ under Sections 2.09(e) and 2.09(h) hereof shall be determined as if ~~such~~ the Lender had not sold such participation. Except with respect to interest rate, ~~except that the participant shall be entitled~~ principal amount of any Loan, fees, scheduled dates for payment of principal or interest or fees, scheduled termination of commitments and commitment amounts, a Lender will not in any such participation agreement restrict its ability to ~~the benefits of Sections 1.10~~make any modification, ~~1.11, 2.6 and 4.4 of~~ amendment or waiver to this Agreement to without the ~~extent that~~ consent of the participant. Any Lender may furnish any information concerning the Borrower in possession of such Lender ~~would be entitled~~ from time to time to Affiliates of such ~~benefits if the participation had not been entered into or sold, and~~Lender and to assignees and participants (including prospective assignees and participants), provided, ~~further~~however, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or extend~~ except when such information is furnished to an Affiliate, the ~~final scheduled maturity~~ furnishing Lender shall give the Borrower prior notice of any ~~Loan or Note in which such participant is participating (it being understood that any waiver~~ furnishing of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any postnon-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment)public information, (ii) ~~release any Guarantor from its obligations under its Guaranty except in accordance with~~ the recipient shall agree to the terms ~~thereof,~~ of this Section 9.01 hereof and (iii) ~~release~~ the furnishing of such information (and the nature, manner and extent thereof) by any Lender to its Affiliates and such assignees and participants shall be further governed by the relevant agreement, assignment or participation agreement relating to such arrangement, assignment or participation, as the case may be. Notwithstanding anything to the contrary in the foregoing, (A) any Lender may, without the consent of the Borrower or the Administrative Agent, assign any of its rights and interests in Loans hereunder to (x) a federal reserve bank, (y) another Lender (other than a Defaulting Lender) or (z) any Affiliate of such Lender; (B) no consent of the Borrower to an assignment shall be required if at the time an Event of Default exists; (C) the Borrower shall be deemed to have consented to any assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within fifteen Business Days after having received notice thereof, and (D) no assignment may be made to (x) the Borrower or any of its Affiliates or (y) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person). (d) Except pursuant to an assignment permitted by this Agreement but only to the extent set forth in such assignment, no Lender shall, as between the Borrower and that Lender, be relieved of any of its obligations hereunder as a result of any sale, transfer or negotiation of, or granting of participations in, all or ~~substantially all~~ any part of the ~~Collateral~~ Loans or Commitment of or Letter of Credit Liabilities at the time owing to that Lender or other obligations owed to such Lender. (ive) ~~consent~~ Subject to ~~the assignment~~ Section 9.01(c), any Lender may at any time assign to one or ~~transfer by any Credit Party~~ more Lenders or other financial institutions all, or a proportionate part of ~~any~~ all, of its rights and obligations under this ~~Agreement~~ Agreement, provided that (i) the minimum amount of such assignment shall be equivalent to (A) if the Purchasing Lender is not a Lender hereunder, $10,000,000 or ~~any other Credit Document. (b) Notwithstanding~~ the ~~foregoing, with the consent~~ aggregate amount of the ~~Agent~~ assigning Lender’s Commitment, whichever is less and (B) if the ~~Borrower~~ Purchasing Lender is a Lender hereunder, $5,000,000 or the aggregate amount of the assigning Xxxxxx’s Commitment, whichever is less and (~~each~~ ii) after giving effect to such assignment, the Commitment of ~~which consents~~ the assigning Lender is equivalent to not less than $10,000,000, unless such assigning Lender shall ~~not be unreasonably withheld), (x) any Lender may assign~~ have assigned all ~~or a portion~~ of ~~its Loans and/or Commitments and~~ its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders)under this Agreement. Any assignment made pursuant to ~~this~~ Section ~~12.4(b~~9.01(c) ~~need not~~ hereof shall be ~~ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment~~ made pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment ~~Agreement~~ #96109338v22 and Assumption Agreement, substantially in the form of Exhibit D G annexed hereto, executed by the Purchasing Lender, the transferor Lender, the Borrower and the Administrative Agent. Upon (~~appropriately completed). In the event~~ i) such execution of ~~any~~ such ~~assignment to a Person not previously a Lender hereunder~~Assignment and Assumption Agreement, ~~either the assigning or the assignee Lender shall pay~~ (ii) delivery of an executed copy thereof to the Borrower, (iii) payment by such Purchasing Lender to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Purchasing Lender, and (iv) payment by such Purchasing Lender or transferor Lender (as they shall mutually agree) to the Administrative Agent of a ~~nonrefundable assignment~~ non-refundable fee of $~~3,500~~3,500 to cover administrative and other expenses which may be incurred in connection with such assignment, such Purchasing Lender shall for all purposes be a Lender party to this Agreement and shall have the rights (including without limitation the benefits of Sections 2.09 and 2.10) and obligations of a Lender under this Agreement to the same extent as if it were an original party hereto and thereto with the pro rata Share of the applicable Commitment set forth in such Assignment and Assumption Agreement, and at no further consent or action by the ~~time of any assignment pursuant to this Section 12.4(b)~~Borrower, ~~(i) Annex 1.1~~ the Lenders or the Administrative Agent shall be required. Such Assignment and Assumption Agreement shall be deemed to ~~be amended~~ amend this Agreement to the extent, and only to the extent, necessary to reflect the ~~Commitment~~ addition of ~~the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any~~ such ~~assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each~~ Purchasing Lender and the ~~Borrower agree to execute~~ resulting adjustment of pro rata Shares arising from the purchase by such ~~documents (including without limitation amendments to~~ Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender under this Agreement and the ~~other Credit Documents)~~ Loans. Upon the consummation of any transfer to a Purchasing Lender pursuant to this paragraph (e), the transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so that, if requested, a replacement Note is issued to such transferor Lender and a new Note or, as ~~shall be necessary~~ appropriate, a replacement Note, if requested, issued to ~~effect~~ such Purchasing Lender, in each case in principal amounts reflecting their pro rata Shares or, as appropriate, their outstanding Loans, as adjusted pursuant to such Assignment and Assumption Agreement. Notwithstanding anything to the ~~foregoing. Nothing~~ contrary contained in this ~~clause (b) shall prevent or prohibit~~ Agreement, neither the Borrower nor any of its Affiliates nor any Defaulting Lender ~~from pledging its Notes or Loans to~~ may be a ~~Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank~~Purchasing Lender. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (df) Each Lender ~~initially party to~~ that sells a participation shall, acting solely for this purpose as a nonfiduciary 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 this Agreement ~~hereby represents~~(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, ~~and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will~~loans, ~~upon~~ letters of credit or its ~~becoming party to~~ other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, ~~represent that it is a commercial lender~~loan, ~~other financial institution~~ letter of credit or other ~~"accredited" investor (as defined~~ obligation is in ~~SEC Regulation D~~registered form under Section 5f.103-1(c) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeUnited States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive, in the absence of manifest~~ conclusive absent clearly demonstrable error, and ~~the Borrower, the Agent and the Lenders may~~ such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein~~ such participation for all purposes of this ~~Agreement,~~ Agreement notwithstanding any notice to the contrary~~. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Textron Inc)

Benefit of Agreement. (a) ~~This Agreement shall be binding -------------------- upon and inure~~ Any Lender may make, carry or transfer Loans at, to or for the ~~benefit~~ account of, any of ~~and be enforceable by~~ its branch offices or the ~~respective successors and assigns~~ office of ~~the parties hereto~~an Affiliate of such Lender, provided that no ~~Credit Party -------- may assign or transfer any~~ such action shall increase the cost of ~~its rights or obligations hereunder without~~ the ~~prior written consent of all~~ Loans to the ~~Lenders.~~ Borrower. (b) Each Lender may ~~at any time grant participations in any~~ assign a portion of its ~~rights hereunder or under any of the Notes to another financial institution~~interests, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this ~~Agreement or any other Credit Document. (b) Notwithstanding the foregoing~~Agreement, ~~with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign~~ including all or a portion of ~~its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y)~~ any ~~Lender may assign all or a portion~~ of its ~~Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees~~ Revolving Credit Loan Commitment (including ~~one or more Lenders). Any assignment pursuant~~ without limitation its commitment to ~~this Section 12.4(b~~participate in Letters of Credit) ~~need not be ratable as among~~ to any Eligible Assignee; provided, however, that (i) the ~~Tranche A Term Loans, the Tranche B Term Loans and~~ amount of the Revolving ~~Commitments~~ Credit Loan Commitment of the assigning Lender ~~except~~ subject to each assignment (determined as ~~provided in~~ of the ~~next sentence. No~~ date the assignment ~~pursuant~~ and acceptance with respect to such assignment is delivered to the ~~immediately preceding sentence (i~~Agent) shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder,~~ not be ~~in an aggregate amount~~ less than an amount equal to $5,000,000 ~~unless the entire Commitment and Loans of~~ or greater integral multiples thereof, (ii) the assigning Lender ~~are so assigned~~ may not assign to an Eligible Assignee more than an amount equal to $10,000,000; (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, (iv) the Borrower shall execute a Revolving Credit Note or ~~(ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the~~ Revolving ~~Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the~~ Credit Notes subject to such ~~assigning Lender shall thereafter refer to such Lender~~ assignment, and to (v) the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender Eligible Assignee shall pay to the Agent a ~~nonrefundable assignment~~ processing and recordation fee of $~~3,500~~3,000. From and after the effective date specified in each Assignment and Acceptance, ~~and at~~ the ~~time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1~~ assignee thereunder shall be ~~deemed~~ a party hereto and to ~~be amended to reflect~~ the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Revolving Credit Loan Commitment of ~~the respective assignee (which~~ $5,000,000; provided, however, no such minimum amount shall ~~result in a direct reduction~~ be required with respect to ~~the Commitment of the assigning Lender) and of the other Lenders, and (ii) if~~ any such assignment ~~occurs~~ made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the ~~Initial Borrowing Date~~notice and the Assignment and Acceptance, the ~~Borrower will issue~~ Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Revolving Credit Note or Revolving Credit Notes, a new Revolving Credit Note or Revolving Credit Notes to the ~~respective assignee~~ order of the Eligible Assignee in a principal amount equal to the applicable Revolving Credit Loan Commitment assumed by it pursuant to such Assignment and Acceptance, as well as a new Revolving Credit Note or Revolving Credit Notes to the assigning Lender in the amount of its retained Revolving Credit Loan Commitment. Such new Revolving Credit Notes to the Eligible Assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be ~~necessary~~ in an aggregate principal amount equal to ~~effect~~ the ~~foregoing. Nothing~~ aggregate principal amount of such surrendered Revolving Credit Note or Revolving Credit Notes, shall be dated the date of the surrendered Revolving Credit Note or Revolving Credit Notes that they replace, and shall otherwise -51- 58 be in ~~this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank.~~substantially the form attached hereto as Exhibit E. (c) ~~Notwithstanding~~ No assignment of all or any ~~other provisions~~ portion of this ~~Section 12.4, no transfer or assignment of the interests or obligations of~~ Agreement by any Lender ~~hereunder or any grant of participation therein~~ shall be permitted without compliance with the provisions of Section 12.12(b) hereof, or if such ~~transfer~~assignment would violate any applicable securities law. In connection with its execution and delivery hereof each Lender represents that it is acquiring its interest herein for its own account for investment purposes and not with a view to further distribution thereof, ~~assignment or grant would~~ and shall require any proposed assignee to furnish similar representations to the ~~Borrower or Holdings to file a registration statement with~~ Agent and the ~~SEC or to qualify the Loans under the "Blue Sky" laws of any State~~Borrower. (d) Each Lender ~~initially party to this Agreement hereby represents~~may, ~~and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will~~without the consent of the Borrower or the Agent, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that but subject to the ~~preceding clauses (a)~~ provisions of Section 2.06, sell participations in its respective Revolving Credit Loan Commitment and (bLetter of Credit commitments to such Lender's Affiliate(s), but sales of participations to Persons other than such Lender's Affiliates shall be made only with the ~~disposition~~ prior consent of the Agent and in all events subject to said section. Provided, however, that (i) no Lender may sell a participation in its aggregate Revolving Credit Loan Commitment and Letter of Credit commitments (after giving effect to any ~~promissory notes or other evidences~~ permitted assignment hereof) unless it retains an aggregate exposure of ~~or interests in Indebtedness held by~~ at least $5,000,000 (except that no such limitation shall be applicable to any such participation sold at any time there exists an Event of Default hereunder), (ii) such Lender's obligations under this Agreement shall remain unchanged, (iii) such Lender shall ~~at all times be within its exclusive control~~remain solely responsible to the other parties hereto for the performance of such obligations, and (iv) the Borrower and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations as provided in this Agreement and the other Loan Documents. Each Lender shall promptly notify in writing the Agent of any sale of a participation hereunder. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section 12.12, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower, any of the Guarantors, or the Consolidated Entities furnished to such Lender by or on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, any of the Guarantors, or any of the Consolidated Entities. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States. The proposed participant or assignee shall agree in writing not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the confidential nature of the information and agree to maintain the confidentiality thereof as described herein, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to the Borrower and the Agent unless otherwise -52- 59 prohibited by the subpoena, order or law), and (iii) upon the ~~Lenders may treat each Person whose name is recorded in the Register as the owner~~ request or demand of ~~the Loan~~ any regulatory agency or ~~Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement~~authority with proper jurisdiction. The proposed participant or assignee, ~~notwithstanding any notice~~ and such representatives, shall further agree to return to the ~~contrary. The Register shall be available for inspection by~~ Borrower all documents or other written material and copies thereof received from any Lender, the Agent, or the Borrower ~~or any Lender at any reasonable time and from time~~ relating to ~~time upon reasonable prior notice~~such confidential information. (f) Any ~~Non-U.S.~~ Lender ~~that could become completely exempt from withholding~~ may at any time assign all or any portion of ~~any United States federal income taxes~~ its rights in ~~respect of payment of any interest due to such Non-U.S. Lender under~~ this Agreement ~~or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent),~~ and the ~~Borrower agrees thereupon,~~ Revolving Credit Notes issued to ~~exchange~~ it to a Federal Reserve Bank; provided that no such assignment shall release the assigning Lender from any ~~Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes~~of its obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (Service Experts Inc)

Appears in 1 contract

Samples: Debt Agreement (American Pad & Paper Co)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. ~~Each Lender may at any time grant participations~~ Nothing in ~~any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under~~ this Agreement express or implied is intended or shall be construed to give any of Person other than the ~~other Credit Documents (the participant's rights against such Lender~~ Parties hereto any legal or equitable right, remedy or claim under or in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any ~~other Credit Document except~~ covenant, condition or provision herein contained, and all such covenants, conditions and provisions are and shall be held to be for the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver sole and exclusive benefit of the ~~application~~ parties hereto and their respective successors and assigns; provided however, CoBank, ACB and The Prudential Insurance Company of ~~any prepayment or the method of any application of any prepayment to, the amortization~~ America shall each be deemed a third party beneficiary of the ~~Term Loans shall not constitute a waiver~~ provisions of ~~any Scheduled Repayment or an extension of the final maturity date~~Section 3.1(e) and Section 3.10(f), and neither of such Sections or ~~reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates)~~this sentence shall be amended, modified, or ~~reduce~~ waived without the ~~principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver~~ prior written consent of ~~any Default or Event~~ each of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Documentthem. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder to another Lender, and~~ under this Agreement (~~y) any Lender may assign~~ including all or a portion of any of its ~~Loans and/or~~ Commitments and ~~its~~ the Loans at the time owing to it and the Notes held by it) to any Eligible Assignee; provided, however, that other than in the case of any assignment of the Tranche B Term Loans, (i) the Agent and the Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed, and provided that the consent of the Borrower shall not be required if an Event of Default has occurred and is continuing) unless such assignment is to an Affiliate of the assigning Lender, (ii) the amount of the Commitments, in the case of assignment of the Commitments, or Loans, in the case of assignment of Loans, of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent), shall not be less than $5,000,000. The parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $3,000. The Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations ~~hereunder~~ of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Commitments or Loans, as the case may be, of $10,000,000; provided, however, no such minimum amount shall be required with respect to any such assignment made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments or amount of its retained Loans. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. The Notes representing the Tranche B Term Loans are to be issued and are assignable in whole or in part as registered securities on the books and records of the Borrower without coupons in denominations of at least $1,500,000, except as may be necessary to reflect any principal amount less than $1,500,000, and may be exchanged for one or more ~~Eligible Transferees (including one or more Lenders)~~Notes of any authorized denomination and like class and aggregate outstanding principal amount. ~~Any assignment pursuant~~ Upon transfer of any Tranche B Term Note, a pro rata portion of the transferring Tranche B Term Lender's Tranche B Term Loan Commitment shall be transferred to ~~this Section 12.4(b) need not be ratable as among~~ the transferee of such Tranche A B Term ~~Loans,~~ Loan Note. The Borrower shall keep at its principal executive office a register in which the Borrower shall record the registrations of the Notes representing the Tranche B Term Loans and the ~~Revolving Commitments~~ names and addresses of the ~~assigning Lender~~ holder thereof from time to time. Upon surrender of a Note representing a Tranche B Term Loan to the Borrower for registration of assignment endorsed or accompanied by a written instrument of assignment duly executed by the registered holder or its attorney duly authorized in writing and accompanied by the address for notices, the Borrower shall at its expense (except as provided ~~in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than~~ below), execute and deliver one or more ~~Lenders hereunder~~replacement Notes of like tenor and class and of a like aggregate amount, be registered in ~~an aggregate amount less than $5,000,000 unless~~ the ~~entire Commitment and Loans~~ name of such holder or its assignees or assignees. Each new Note will bear interest from the date on which interest was last paid on the surrendered Note or the date of issue of the ~~assigning Lender are so assigned~~ surrendered Note if no interest has yet been paid thereon. The Borrower may require payment of a sum sufficient to cover any stamp tax or ~~(ii) shall be effective if the result thereof is that any Lender has a different percentage interest~~ governmental charge imposed in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event respect of any such ~~assignment to~~ assignment. Upon receipt of written notice from a ~~Person not previously~~ holder of a ~~Lender hereunder~~Note representing a Tranche B Term Loan of the loss, ~~either~~ theft, destruction or mutilation of such Note and, in the ~~assigning~~ case of any such loss, theft or ~~the assignee Lender shall pay~~ destruction, upon receipt of an indemnification agreement of such holder satisfactory to the ~~Agent a nonrefundable assignment fee of $3,500~~Borrower, ~~and at~~ or in the ~~time~~ case of any ~~assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment~~ such mutilation upon surrender and cancellation of ~~the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any~~ such ~~assignment occurs after the Initial Borrowing Date~~Note, the Borrower will make and deliver a new Note, at its expense, of like tenor and class, in lieu of the lost, stolen, destroyed or mutilated Note, and each new Note will bear interest from the date on which interest was last paid on such lost, stolen, destroyed or mutilated Note or if no interest has yet been paid thereon, the date of issue ~~new Notes~~ of such lost, stolen, destroyed or mutilated Note . Notwithstanding anything in the foregoing to the ~~respective assignee and to the assigning~~ contrary, no Tranche B Term Loan Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent may assign any Note representing a Tranche B Term Loan or ~~prohibit~~ any ~~Lender from pledging its Notes or Loans~~ interest therein to a ~~Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment~~ competitor of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any StateBorrower. (d) Each Lender ~~initially party~~ may, without the consent of the Borrower or the Agent, sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement ~~hereby represents~~(including all or a portion of its Commitments in the Loans owing to it and the Notes held by it), provided, however, that (other than in the case of a Tranche B Term Lender) (i) no Lender may sell a participation in its aggregate Commitments or Loans (after giving effect to any permitted assignment hereof) in an amount in excess of fifty percent (50%) of such aggregate Commitments or Loans, and ~~each Person that became~~ the selling Lender must retain after the sale of such participation a ~~Lender pursuant~~ minimum aggregate amount of Commitments or Loans, as the case may be, of $10,000,000, provided, however, sales of participations to an ~~assignment permitted by~~ Affiliate of such Lender shall not be included in such calculation; provided, however, no such maximum amount shall be applicable to any such participation sold at any time there exists an Event of Default hereunder, (ii) such Lender's obligations under this ~~Section 12 will~~Agreement shall remain unchanged, ~~upon~~ (iii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iv) the participating bank or other entity shall not be entitled to the benefit (except through its ~~becoming party to~~ selling Lender) of the cost protection provisions contained in Article 3 of this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b)v) the Borrower and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents, ~~the disposition of any promissory notes or other evidences of or interests in Indebtedness held by~~ and such Lender shall ~~at all times be within its exclusive control~~retain the sole right to enforce the obligations of the Borrower relating to the Loans and to approve any amendment, modification or waiver of any provisions of this Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to the Borrower of the name of such participant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower or the Subsidiaries furnished to such Lender by or on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. The Register shall be available for inspection by the Borrower or any ~~Lender at~~ Subsidiary. With respect to any ~~reasonable time~~ disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the confidential nature of the information and shall agree to use the information and to hold the information as confidential all in the same manner described above, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to the Borrower and the Agent unless otherwise prohibited by the subpoena, order or law), and (iii) upon the request or demand of any regulatory agency or authority with proper jurisdiction. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from ~~time~~ any Lender, the Agent or the Borrower relating to ~~time upon reasonable prior notice~~such confidential information unless otherwise properly disposed of by such entity. (f) Any ~~Non-U.S.~~ Lender ~~that could become completely exempt from withholding~~ may at any time assign all or any portion of ~~any United States federal income taxes~~ its rights in ~~respect of payment of any interest due to such Non-U.S. Lender under~~ this Agreement or and the Notes if issued to it to a Federal Reserve Bank; provided that no such assignment shall release the ~~Note(s) held by such Non-U.S.~~ Lender ~~were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange~~ from any ~~Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes~~of its obligations hereunder.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that~~ however, no Credit Party ~~--------~~ may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ the ~~Lenders. Each~~ Lenders (it being understood that this Section 13.04 shall not prevent a merger or consolidation otherwise permitted by this Agreement) and, provided further, that, although any Lender may ~~at any time~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments hereunder except as provided in Section 13.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a "Lender" hereunder and, provided further, that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except (x) in connection with a waiver of applicability of any post-default increase in interest rates and (y) any amendment or modification that is not agreed to by each Lender directly affected thereby to the financial definitions in this Agreement or to Section 13.07(a) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i), notwithstanding the fact that such amendment or modification would otherwise actually result in such a reduction, so long as the primary purpose (as determined in good faith by the Borrower and the Administrative Agent) of the respective amendment or modification was not to decrease the pricing pursuant to this Agreement) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) consent to the assignment or transfer by the Borrower of any of its rights ~~hereunder~~ and obligations under this Agreement or ~~under any~~ (iii) release all or substantially all of the ~~Notes to another financial institution,~~ Collateral under all of the Security Documents (except as expressly provided ~~that~~ in the Credit Documents) supporting the Obligations in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or ~~any of the other Credit Documents (the participant's rights against such Lender~~ in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, any Lender (or any Lender together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Lenders) may (x) ~~any Lender may~~ assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or its outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term Loan Commitment) and/or ~~Commitments~~ its outstanding RTL Loans (or, if prior -132- 139 to the RTL Conversion Date, RTL Commitment) to (i) its parent company and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company or to one or more Lenders or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and ~~its rights and obligations hereunder to another Lender,~~ is managed by the same investment advisor of any Lender or by an Affiliate of such investment advisor and (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least (A) in the case of ~~its~~ assignments of A Term Loans, RTL Loans or Revolving Loans, $5,000,000 and (B) in the case of B Term Loans and C Term Loans, $2,500,000 in the aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan Commitments and/or ~~Commitments and its rights and obligations~~ outstanding principal amount of Term Loans (or, if prior to the Initial Borrowing Date, Term Loan Commitment) and/or outstanding principal amount of RTL Loans (or, if prior to the RTL Conversion Date, RTL Commitment) hereunder to one or more ~~Eligible Transferees~~ Qualified Persons (~~including one~~ treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed by the same investment advisor of such fund or ~~more Lenders~~by an Affiliate of such investment advisor as a single Qualified Person)~~. Any assignment pursuant~~ , each of which assignees shall become a party to this ~~Section 12.4(b) need not be ratable~~ Agreement as ~~among the Tranche A Term Loans~~a Lender by execution of an Assignment and Assumption Agreement, ~~the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as~~ provided ~~in the next sentence. No assignment pursuant to the immediately preceding sentence~~ that, (i) at such time Schedule I shall be deemed modified to reflect the ~~extent~~ Commitments (and/or outstanding Term Loans and/or RTL Loans, as the case may be) of such ~~assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment~~ new Lender and ~~Loans~~ of the ~~assigning Lender are so assigned or~~ existing Lenders, (ii) ~~shall be effective if~~ upon surrender of the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the old Notes, ~~any reference in this Agreement or~~ new Notes will be issued, at the ~~Notes~~ Borrower's expense, to such ~~assigning Lender shall thereafter refer to such~~ new Lender and to the ~~respective assignee~~ assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments (and/or outstanding Term Loans and/or RTL Loans, as the case may be) and requested by such new Lender and/or assigning Lender, (iii) the consent of ~~their respective interests~~ the Administrative Agent and, with respect to assignments of Revolving Loans and/or Revolving Loan Commitments, each Issuing Lender shall be required in connection with any such assignment pursuant to clause (y) of this Section 13.04(b) (which consent shall not be unreasonably withheld or delayed), (iv) unless an Event of Default shall have occurred and is continuing, the ~~respective assignee~~ consent of the Borrower shall ~~have~~be required in connection with any such assignment pursuant to clause (y) of this Section 13.04(b) (such consent not to be unreasonably withheld or delayed), it being understood and agreed that for the first fifteen (15) days following the Initial Borrowing Date, the consent of the Borrower shall not be required in connection with any such assignments to the extent occurring in connection with the primary syndication of this facility and (v) the Administrative Agent shall receive at the time of each such ~~assignment (unless otherwise provided therein)~~assignment, the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $~~3,500~~3,500 and, ~~and at~~ provided further, that such transfer or assignment will not be effective until recorded by the ~~time~~ Administrative Agent on the Register pursuant to Section 13.16 hereof. To the extent of any assignment pursuant to this Section ~~12.4(b~~13.04(b), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Commitments. At the time of each assignment pursuant to this Section 13.04(b) to a person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Lender's Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to pay such increased -133- 140 costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment). (c) If any Gaming Authority shall determine that any Lender is not qualified as an approved financial source or otherwise does not meet the standards pursuant to the Gaming Regulations in the relevant jurisdiction, or any Gaming Authority with jurisdiction over the Gaming Business of the Borrower and its Subsidiaries shall determine that any Lender does not meet its suitability standards (in any such case, a "Former Lender"), the Administrative Agent and each Issuing Lender or the Borrower shall have the right (but not the duty) to designate a lender or lenders (in each case, a "Substitute Lender", which may be any Lender or Lenders that agree to become a Substitute Lender) that has agreed to assume the rights and obligations of the Former Lender, subject to receipt by the Administrative Agent of evidence satisfactory to the Administrative Agent that such Substitute Lender is a Qualified Person, or has a reasonable basis for a belief that the Substitute Lender is eligible to be a Qualified Person, and compliance with Gaming Regulations. The Substitute Lender shall assume the rights and obligations of the Former Lender under this Agreement pursuant to an Assignment and Assumption Agreement, which assumption shall be required to comply with, and shall become effective in accordance with, the provisions of Section 13.04(b), provided that the purchase price to be paid by the Substitute Lender to the Administrative Agent for the account of the Former Lender for such assumption shall equal the sum of (i) ~~Annex 1.1 shall be deemed to be amended to reflect~~ the ~~Commitment~~ unpaid principal amount of any Notes held or Loans made by the Former Lender plus accrued interest thereon plus (ii) the Former Lender's pro rata share of the ~~respective assignee~~ aggregate amount of Drawings under all Letters of Credit that have not been reimbursed by the Borrower, plus accrued interest thereon, plus (~~which shall result in a direct reduction~~ iii) such Former Lender's pro rata share of accrued Fees to the ~~Commitment~~ date of the ~~assigning~~ assumption, and, provided further, the Borrower shall pay all obligations owing to the Former Lender under the Credit Documents (including all obligations, if any, owing pursuant to Section 1.11, but excluding those amounts in respect of which the purchase price is being paid as provided above). Each Lender agrees that if it becomes a Former Lender, upon payment to it by the Borrowers of all such amounts, if any, owing to it under the Credit Documents, it will execute and deliver an Assignment and Assumption Agreement upon payment of such purchase price. (d) Notwithstanding the provisions of subsection (c) of this Section 13.04, but subject to applicable Gaming Regulations if any Lender becomes a Former Lender, and if the Administrative Agent or the Borrower fails to find a Substitute Lender pursuant to subsection (c) of this Section within any time period specified by the ~~other Lenders~~appropriate Gaming Authority for the withdrawal of a Former Lender (the "Withdrawal Period"), the Borrower shall immediately (i) prepay in full the outstanding principal amount of each Note held or Loan made by such Former Lender, together with accrued interest thereon to the earlier of (x) the date of payment or (y) the last day of any Withdrawal Period, and (ii) ~~if any such assignment occurs after~~ at the ~~Initial Borrowing Date,~~ option of the Borrower either (A) place an amount equal to such Former Lender's Percentage in each Letter of Credit in a separate cash collateral account with the Administrative Agent for each outstanding Letter of Credit, which amount will ~~issue new Notes~~ be applied by the Administrative Agent to satisfy the Borrower's reimbursement obligations to the respective ~~assignee and to the assigning~~ Issuing Lender in ~~conformity with~~ respect of Drawings under the ~~requirements~~ applicable Letter of ~~Section 1.5. Each~~ Credit or (B) if no Default or Event of Default then exists, terminate the Revolving Loan Commitment (and, if applicable, RTL Commitment) of such Former Lender ~~and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and~~ at which time the other ~~Credit Documents)~~ Lenders' Revolving Percentages will be automatically adjusted as ~~shall be necessary to effect~~ a result thereof, provided that the ~~foregoing. Nothing~~ option specified in this clause (B) may only be exercised if, immediately after giving -134- 141 effect thereto, no Lender's outstanding Revolving Loans, when added to the product of (a) such Lender's Revolving Percentage and (b) the sum of (I) the aggregate amount of all Letter of Credit Outstandings at such time and (II) the aggregate amount of all Swingline Loans then outstanding, would exceed such Lender's Revolving Loan Commitment at such time. (e) Subject to the last sentence of this Section 13.04(e), each Lender agrees that all participations and assignments made hereunder shall be subject to, and made in compliance with, all Gaming Regulations applicable to lenders. Each Lender agrees further that it will not grant participations or assignments (other than to funds that invest in bank loans and are managed by the same investment advisor of such assigning Lender) prior to receiving notice from the Administrative Agent that it has completed the primary syndication of this facility. The Administrative Agent shall provide such notice to the Lenders and the Borrower promptly after completing such primary syndication. The Borrower hereby acknowledges that unless the Borrower has provided the Lenders with a written opinion of counsel as to the suitability standards applicable to lenders of any relevant Gaming Authority with jurisdiction over the Gaming Business of the Borrower and its Subsidiaries, no Lender shall have the responsibility of determining whether or not a potential assignee of such Lender would be a Qualified Person under the Gaming Regulations of any such jurisdiction. (f) Nothing in this Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve ~~Bank~~ Lender in support of borrowings made by such Lender from such Federal Reserve ~~Bank. (c) Notwithstanding any other provisions of this Section 12.4~~Bank and, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the ~~contrary. The Register shall be available for inspection by the Borrower~~ Administrative Agent, any Lender which is a fund may pledge all or any ~~Lender at any reasonable time~~ portion of its Loans and ~~from time~~ Notes to ~~time upon reasonable prior notice~~its trustee in support of its obligations to its trustee. (f) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Ameristar Casinos Inc)

Appears in 1 contract

Samples: Credit Agreement (Mobilepro Corp)

Benefit of Agreement. (a) ~~This~~ The provisions of this Credit Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of the parties hereto and ~~be enforceable by the~~ their respective successors and assigns ~~of the parties hereto~~permitted hereby, ~~provided~~ except that no a Credit Party ~~--------~~ may not assign or otherwise transfer any of its rights or obligations hereunder (except as permitted by Section 8.4) without the prior written consent of ~~all~~ each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the ~~Lenders~~provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). ~~Each~~ Nothing in this Credit Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participant Purchasers to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnified Persons) any legal or equitable right, remedy or claim under or by reason of this Credit Agreement. (b) Any Lender may at any time ~~grant participations in any~~ assign to one or more Eligible Assignees all or a portion of its rights ~~hereunder~~ and obligations under this Credit Agreement (including all or ~~under any~~ a portion of its Commitment and the Obligations (including for purposes of this subsection (b), participations in LOC Obligations and Swing Line Loans) at the time owing to it); provided that (i) except in the case of (A) an assignment of the ~~Notes~~ entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to ~~another financial institution~~it or (B) an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Credit Agreement with respect to the Obligations or the Commitment assigned; (iii) any assignment of a Commitment must be approved by the Administrative Agent, the Issuing Lender and the Swingline Lender unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that in the case of ~~any such -------- participation~~contemporaneous assignments involving multiple Approved Funds affiliated with a common money manager, a single fee, rather than multiple fees, of $3,500 shall be required. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the ~~participant~~ Eligible Assignee thereunder shall ~~not~~ be a party to this Credit Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have ~~any~~ the rights and obligations of a Lender under this ~~Agreement or any~~ Credit Agreement, and the assigning Lender thereunder shall, to the extent of the ~~other~~ interest assigned by such Assignment and Assumption, be released from its obligations under this Credit ~~Documents~~ Agreement (and, in the ~~participant's~~ case of an Assignment and Assumption covering all of the assigning Lender’s rights ~~against~~ and obligations under this Credit Agreement, such Lender ~~in respect of such participation~~ shall cease to be ~~those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder~~ a party hereto but shall ~~be determined as if such Lender had not sold such participation, except that the participant shall~~ continue to be entitled to the benefits of Sections ~~1.10~~3.12, ~~1.11~~3.13, ~~2.6~~ 3.14 and ~~4.4 of this Agreement~~ 11.5 with respect to facts and circumstances occurring prior to the ~~extent that~~ effective date of such ~~Lender would be entitled to such benefits if~~ assignment). Upon request, the ~~participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender~~ Borrower (at its expense) shall ~~transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except~~ execute and deliver a Revolving Loan Note and a Competitive Bid Loan Note to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignee Lender. Any assignment or transfer by ~~any~~ a Lender of rights or obligations under this Credit ~~Party~~ Agreement that does not comply with this subsection shall be treated for purposes of ~~any~~ this Credit Agreement as a sale by such Lender of ~~its~~ a participation in such rights and obligations ~~under~~ in accordance with subsection (d) of this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve BankSection. (c) ~~Notwithstanding any other provisions of~~ The Administrative Agent, acting solely for this ~~Section 12.4, no transfer or assignment~~ purpose as an agent of the ~~interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer~~Borrower, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at one of its ~~Payment Office~~ offices in the United States a copy of each Assignment ~~Agreement~~ and Assumption delivered to it ~~(as required hereby)~~ and a register ~~(the "Register")~~ for ~~--------~~ the recordation of the names and addresses of the ~~Lenders~~ Lenders, and the ~~registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment~~ Commitments of, and principal ~~amount~~ amounts of the ~~Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term~~ Loans and ~~the Additional Tranche B Term Loans~~ LOC Obligations owing to, each Lender pursuant to the terms hereof from time to ~~time~~time (the “Register”). The entries in the Register shall be conclusive, ~~in the absence of manifest error,~~ and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as ~~the owner of the Loan or Qualified Non-U.S.~~ a Lender ~~Note recorded therein~~ hereunder for all purposes of this Credit Agreement, notwithstanding ~~any~~ notice to the contrary. The Register shall be available for inspection by the Borrower or and any ~~Lender~~ Lender, at any reasonable time and from time to time upon reasonable prior notice. (fd) Any ~~Non-U.S.~~ Lender ~~that could become completely exempt from withholding~~ may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of ~~any United States federal income taxes~~ the Borrower’s Affiliates or Subsidiaries) (each, a “Participation Purchaser”) in ~~respect~~ all or a portion of ~~payment of any interest due to~~ such ~~Non-U.S. Lender~~ Lender’s rights and/or obligations under this Credit Agreement (including all or a portion of its Commitment and/or the ~~Notes if the Note(s) held by~~ Loans (including such ~~Non-U.S. Lender were~~ Lender’s participations in ~~registered form for United States federal income tax purposes may request the Borrower (through the Agent),~~ LOC Obligations and ~~the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.~~Swing Line

Appears in 1 contract

Samples: Revolving Credit Agreement (Pan Pacific Retail Properties Inc)

Benefit of Agreement. (a) ~~This~~ The provisions of this Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of the parties hereto and ~~be enforceable by the~~ their respective successors and assigns permitted hereby (including any Affiliate of the ~~parties hereto~~Letter of Credit Issuer that issues any Letter of Credit), ~~provided~~ except that (i) no Credit Party ~~--------~~ may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of ~~all the Lenders. Each~~ each Lender ~~may at~~ (and any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the attempted assignment or transfer by any Credit Party without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Letter of Credit Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement ~~or any other Credit Document.~~ (~~b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign~~ including all or a portion of its ~~Loans and/or~~ Commitments and ~~its rights~~ the Loans at the time owing to it and ~~obligations hereunder~~ the outstanding B/As accepted and purchased by it) with the prior written consent (such consent not to ~~another~~ be unreasonably withheld or delayed) of (A) the US Borrower, provided that no consent of the US Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as defined below) or, if an Event of Default has occurred and is continuing, any other assignee, (B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund and (yC) ~~any Lender may assign~~ the Letter of Credit Issuer, provided that no consent of the Letter of Credit Issuer shall be required for an assignment of all or a any portion of ~~its~~ a Term Loan or Term Commitment. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans ~~and/or Commitments~~ and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term LoansB/As of any Tranche, the ~~Tranche B Term~~ amount of the Commitment or Loans and ~~the Revolving Commitments~~ B/As of the assigning Lender ~~except as provided in the next sentence. No assignment pursuant~~ subject to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of each such assignment (~~unless otherwise provided therein),~~ determined as of the ~~same rights~~ date the Assignment and ~~benefits as it would if it were such assigning Lender. Each assignment pursuant~~ Assumption Agreement with respect to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.delivered

Appears in 1 contract

Samples: Credit Agreement (Compass Minerals International Inc)

Benefit of Agreement. (a1) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders~~. Each~~ . (2) Any Lender may ~~at any time grant participations in~~ make, carry or transfer Line of Credit Loans at, to or for the account of, any of its ~~rights hereunder~~ branch offices or ~~under any~~ the office of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect an Affiliate of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit DocumentLender. (b3) ~~Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Line of Credit Commitments and the Line of Credit Loans at the time owing to ~~another~~ it and the Line of Credit Notes held by it) to any Eligible Assignee; provided, however, that (i) the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is an Affiliate of the assigning Lender, (ii) the amount of the Line of Credit Commitments of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $10,000,000, and (yiii) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a Line of Credit Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender ~~may assign~~ or the Administrative Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Line of Credit Note or Notes, a new Line of Credit Note or Notes to the order of such assignee in a principal amount equal to the applicable Line of Credit Commitments or Line of Credit Loans assumed by it pursuant to such Assignment and Acceptance and new Line of Credit Note or Notes to the assigning Lender in the amount of its retained Line of Credit Commitment or Commitments or amount of its retained Line of Credit Loans. Such new Line of Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Line of Credit Note or Notes, shall be dated the date of the surrendered Line of Credit Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (4) Each Lender may, without the consent of Borrower or the Administrative Agent, sell participations without restriction to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Line of Credit Commitments in the Line of Credit Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the ~~Revolving Commitments~~ Line of ~~the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Credit Notes held by it), provided, however, that (i) such Lender's obligations under this Agreement shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder~~remain unchanged, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the performance of such obligations, (iii) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article III of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiiv) ~~if any such assignment occurs after~~ Borrower and the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ Administrative Agent and other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents, and such Lender shall retain the sole right to enforce the obligations of Borrower relating to the Line of Credit Loans and to approve any amendment, modification or waiver of any provisions of this Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower of the name of such participant. (5) as Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States of America. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be ~~necessary~~ informed of the confidential nature of the information, (ii) in any statement or testimony pursuant to ~~effect~~ a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the ~~foregoing~~Administrative Agent unless otherwise prohibited by the subpoena, order or law), and (iii) upon the request or demand of any regulatory agency or authority with proper jurisdiction. ~~Nothing~~ The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from any Lender, the Administrative Agent or Borrower relating to such confidential information unless otherwise properly disposed of by such entity. (6) Any Lender may at any time assign all or any portion of its rights in this ~~clause (b) shall prevent or prohibit any Lender from pledging its~~ Agreement and the Line of Credit Notes ~~or Loans~~ issued to it to a Federal Reserve ~~Bank in support of borrowings made by~~ Bank; provided that no such assignment shall release the Lender from ~~such Federal Reserve Bank~~any of its obligations hereunder. (c7) ~~Notwithstanding~~ If (i) any ~~other provisions~~ Taxes referred to in Section 3.07(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of ~~this Section 12.4, no transfer or assignment of the interests or obligations of~~ additional amounts to any Lender ~~hereunder or~~ as a result thereof, (ii) any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall ~~at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent~~ make demand for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 3.10 or for its reduced rate of return pursuant to Section 3.16, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the ~~Note(s) held~~ Administrative Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Line of Credit Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Line of Credit Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Line of Credit Agreement (Hughes Supply Inc)

Benefit of Agreement. (a) ~~This~~ The provisions of this Credit Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of the parties hereto and ~~be enforceable by the~~ their respective successors and assigns permitted hereby (including any Affiliate of the ~~parties hereto~~Issuing Bank that issues any Letter of Credit), ~~provided~~ except that ~~no Credit Party --------~~ (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of ~~all the Lenders. Each~~ each Lender ~~may at~~ (and any ~~time grant participations in any of its rights hereunder~~ attempted assignment or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable transfer by the Borrower ~~hereunder~~ without such consent shall be ~~determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6~~ null and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (ivoid) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), and (ii) ~~release any Guarantor from~~ no Lender may assign or otherwise transfer its rights or obligations ~~under its Guaranty~~ hereunder except in accordance with this Section. Nothing in this Credit Agreement, expressed or implied, shall be construed to confer upon any Person (other than the ~~terms thereof~~parties hereto, their respective successors and assigns permitted hereby (~~iii~~including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) ~~release~~ of this Section) and, to the extent expressly contemplated 115 hereby, the Indemnified Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement. (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees all or ~~substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any~~ a portion of its rights and obligations under this Credit Agreement ~~or any other Credit Document.~~ (~~b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign~~ including all or a portion of its Commitment and the Loans ~~and/or Commitments and its rights and obligations hereunder~~ at the time owing to ~~another~~ it) with the prior written consent (such consent not to be unreasonably withheld) of: (A) the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, ~~and~~ an Affiliate of a Lender or an Approved Fund; and (yB) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the ~~Tranche A Term Loans~~Administrative Agent, ~~the Tranche B Term Loans and the Revolving Commitments~~ provided that no consent of the ~~assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i)~~ Administrative Agent shall ~~to the extent such assignment represents~~ be required for an assignment to an ~~institution other than one~~ assignee that is a Lender, Affiliate of a Lender or ~~more Lenders hereunder~~an Approved Fund immediately prior to giving effect to such assignment. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, ~~be in~~ Affiliate of a Lender, an ~~aggregate amount less than $5,000,000 unless~~ Approved Fund or an assignment of the entire ~~Commitment and Loans~~ remaining amount of the assigning ~~Lender are so assigned~~ Lender's and its Affiliates' or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein)Approved Funds' Commitment, the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form amount of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning ~~Lender) and~~ Lender subject to each such assignment (determined as of the ~~other Lenders,~~ date the Assignment and ~~(ii) if any~~ Acceptance with respect to such assignment ~~occurs after the Initial Borrowing Date, the Borrower will issue new Notes~~ is delivered to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (bAdministrative Agent) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall not be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans less than $5,000,000 in the ~~ordinary course~~ case of ~~its business~~ Revolving Commitments and ~~that it will make or acquire Loans for its own account~~ $1,000,000 in the ~~ordinary course~~ case of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans ~~owing to~~unless each of the Borrower and the Administrative Agent otherwise consent; (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement in respect of the applicable class of Commitments or Loans; provided that this subsection shall not be construed to prohibit assignment of a proportionate part of all the assigning Lender's rights and obligations in respect of one class of Commitments or Loans; (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, ~~each Lender from time~~ together with a processing and recordation fee of $3,500; (D) the assignee, if it shall not be a Lender, shall deliver to ~~time. The entries~~ the Administrative Agent an administrative questionnaire; and (E) in the ~~Register~~ case of an assignment by a Lender to a CLO managed by such Lender or an Affiliate of such Lender, unless such assignment (or an assignment to a CLO managed by such Lender or an Affiliate of such Lender) shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. The Register shall be available for inspection have been approved by the Borrower ~~or any Lender at any reasonable time and from time to time upon reasonable prior notice.~~ (f) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower ~~(through the Agent)~~agreeing that such an approval, ~~and the Borrower agrees thereupon~~if requested, ~~to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.~~will not be

Appears in 1 contract

Samples: Credit Agreement (Agrilink Foods Inc)

Appears in 1 contract

Samples: Credit Agreement (Superior National Insurance Group Inc)

Appears in 1 contract

Samples: Credit Agreement (Generac Portable Products Inc)

Appears in 1 contract

Samples: Credit Agreement (Amerus Group Co/Ia)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; PROVIDED, ~~provided~~ HOWEVER, that (i) no Credit Party ~~--------~~ may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ the Lenders~~. Each~~ , (ii) although any Lender may ~~at any time~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments hereunder except as provided in Section 13.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a "Lender" hereunder and (iii) no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except (I) in connection with a waiver of applicability of any post-default increase in interest rates and (II) that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (y) consent to the assignment or transfer by the Borrower of any of its rights ~~hereunder~~ and obligations under this Agreement or ~~under any~~ (z) release all or substantially all of the ~~Notes to another financial institution,~~ Collateral under all of the Security Documents (except as expressly provided ~~that~~ in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, any Lender (or any Lender together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Lenders) may (x) ~~any Lender may~~ assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or its outstanding Term Loans (or, if prior to the Initial Borrowing Date, Term Loan Commitment) to its (i) parent company and/or ~~Commitments~~ any affiliate of such Lender which is at least 50% owned by such Lender or its parent company or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and ~~its rights and obligations hereunder~~ is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor or (iii) to ~~another Lender, and~~ one or more Lenders or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $2,000,000 in the aggregate for the assigning Lender or assigning Lenders, of ~~its Loans and/or~~ such Revolving Loan Commitments and ~~its rights and obligations~~ outstanding principal amount of Term Loans (or, if prior to the Restatement Effective Date, Term Loan Commitment) hereunder to one or more Eligible Transferees (~~including one~~ treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or ~~more Lenders~~advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee)~~. Any assignment pursuant~~ , each of which assignees shall become a party to this ~~Section 12.4(b~~Agreement as a Lender by execution of an Assignment and Assumption Agreement, PROVIDED that (i) ~~need not~~ at such time Schedule I shall be ~~ratable as among~~ deemed modified to reflect the ~~Tranche A~~ Commitments (and/or outstanding Term Loans, as the ~~Tranche B Term Loans~~ case may be) of such new Lender and ~~the Revolving Commitments~~ of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunderexisting Lenders, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) ~~shall~~ new Notes will be ~~effective if~~ issued, at the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the NotesBorrower's expense, ~~any reference in this Agreement or the Notes~~ to such ~~assigning Lender shall thereafter refer to such~~ new Lender and to the ~~respective assignee~~ assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent ~~of their respective interests and~~ needed to reflect the ~~respective assignee shall have~~revised Commitments (and/or outstanding Term Loans, to as the ~~extent of such assignment (unless otherwise provided therein~~case may be), (iii) the ~~same rights~~ consent of the Administrative Agent and ~~benefits as it would if it were such assigning Lender. Each~~ each Issuing Lender shall be required in connection with any assignment of all or any portion of Revolving Loan Commitments (which consents shall not be unreasonably withheld or delayed), (iv) in the case of assignments pursuant to ~~this Section 12.4(b~~clause (y) above, the consent of the Administrative Agent (and, unless any Default or Event of Default is then in existence, the consent of the Borrower) shall be ~~effected by~~ required (which consents shall not be unreasonably withheld or delayed) and (v) the ~~assigning Lender and~~ Administrative Agent shall receive at the ~~assignee Lender executing an Assignment Agreement substantially in the form~~ time of ~~Exhibit D (appropriately completed). In the event of any~~ each such ~~assignment to a Person not previously a Lender hereunder~~assignment, ~~either~~ from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $3,500~~, and at~~ . To the ~~time~~ extent of any assignment pursuant to this Section ~~12.4(b~~13.04(b), ~~(i) Annex 1.1~~ the assigning Lender shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Commitments (it being understood that the indemnification provisions under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06) shall survive as to such assigning Lender). At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Lender's Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee~~ assignment, subject to Section 4.04(b)). (~~which shall result in a direct reduction to the Commitment of the assigning Lender~~c) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve ~~Bank.~~ Bank and, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), any Lender which is a fund may pledge all or any portion of its Notes or Loans to any trustee, other representative of holders of notes issued by such fund, or holder of obligations owed by such fund, in support of its obligation to such trustee, representative or holder. No pledge pursuant to this clause (c) ~~Notwithstanding~~ shall release the transferor Lender from any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlobligations hereunder. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Packaging Corp of America)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the parties hereto and the respective successors and assigns of the parties ~~hereto~~hereto to the extent permitted under this Section 8.4 (Benefit of Agreement); provided, that, except as provided ~~that no Credit Party --------~~ in Section 5.10 (Successor Substituted) of this Agreement, the Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of ~~all the Lenders~~each Lender. Each Lender may at any time grant participations in any of its rights hereunder to one or ~~under any of the Notes to another~~ more commercial banks, insurance companies, funds or other financial ~~institution~~institutions; provided, ~~provided~~ that in the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation~~, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6~~ ; and ~~4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and,~~ provided, further, that no ~~-------- -------~~ Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit ~~Document~~ Documents except to the extent such amendment or waiver would (ix) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan or Lender Note in which such participant is participating ~~(it being understood that~~ or waive any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)Mandatory Prepayment thereof, or reduce the rate or extend the time of payment of interest or ~~Fees~~ fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's ’s participating interest in any ~~Commitment~~ Lender Note over the amount thereof then in effect (it being understood that a waiver of any Default or ~~Event of Default or of~~ a ~~mandatory reduction in the Total Commitment, or a mandatory prepayment~~Mandatory Prepayment, shall not constitute a change in the terms of any ~~Commitment~~Lender Note), (~~ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii~~y) release all or substantially all of the ~~Collateral~~ Assets (in each case, except as expressly provided in the Credit Documents), or (ivz) consent to the assignment or transfer by ~~any Credit Party~~ the Borrower of any of its rights and obligations under this Agreement (except as provided in Section 5.10 (Successor Substituted) of this Agreement); and provided, further, that each participation shall be subject to the related participant providing a representation and warranty to the Lender from which it is acquiring its participation that it is (x) a Qualified Purchaser and a Qualified Institutional Buyer or ~~any other Credit Document~~(y) a non-U.S. Person that is a Qualified Purchaser. (b) ~~Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any~~ Any Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to another~~ under this Agreement (including, such Lender’s Loans, Lender Note and (yother Loans) ~~any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder~~ to one or more ~~Eligible Transferees~~ commercial banks, insurance companies, funds or other financial institutions (including one or more Lenders~~). Any assignment pursuant to this Section 12.4(b~~) ~~need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ that is a Qualified Institutional Buyer and ~~the Revolving Commitments of the assigning Lender except as provided in the next sentence~~a Qualified Purchaser. No assignment pursuant to the immediately preceding sentence ~~(i) shall to the extent such assignment represents an assignment~~ to an institution other than ~~one~~ an Affiliate of such Lender or ~~more Lenders hereunder,~~ another Lender shall be in an aggregate amount less than ~~$5,000,000~~ (unless the entire ~~Commitment and Loans~~ outstanding Loan of the assigning Lender ~~are~~ is so ~~assigned~~ assigned) $250,000. No consent of the Borrower or the Loan Agent shall be required for any assignment by a Lender to (x) an Affiliate of such Lender, (y) a Conduit Lender or (iiz) ~~shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility~~another Lender. If any Lender so sells or assigns all or a part of its rights hereunder or under the Lender Notes, any reference in this Agreement or the Lender Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. . (c) Each assignment pursuant to ~~this~~ Section ~~12.4(b~~8.4(b) (Benefit of Agreement) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement (an “Assignment Agreement”), which Assignment Agreement shall be substantially in the form of Exhibit D B (appropriately completed); provided, that, in each case, unless otherwise consented to by the Borrower, the Assignment Agreement shall contain a representation and warranty by the assignee to the Loan Agent and the Borrower that such assignee is an Approved Lender. In the event of (and at the time of) any such ~~assignment to a Person not previously a Lender hereunder~~assignment, either the assigning Lender or the assignee Lender shall pay to the Loan Agent a nonrefundable assignment fee of up to $3,500, and at the time of any assignment pursuant to subclause (b) of this Section ~~12.4(b~~8.4 (Benefit of Agreement), (i) ~~Annex 1.1~~ this Agreement shall be deemed to be amended to reflect the ~~Commitment~~ Lender Note (or the Confirmation of Registration in lieu thereof) of the respective assignee (which shall result in a direct reduction to the ~~Commitment~~ Lender Note of the assigning Lender) and of the other Lenders, and (ii) ~~if any such assignment occurs after the Initial Borrowing Date,~~ the Borrower ~~will~~ shall issue new Lender Notes (or Confirmation of Registration) to the respective assignee ~~and~~ and/or to the assigning ~~Lender~~ Lender, as applicable, in conformity with the requirements of Sections 3.2 (Lender Notes) and 8.16 (Register). No transfer or assignment under subclause (b) of this Section ~~1.5~~8.4 shall be effective until recorded by the Loan Agent on the Register pursuant to Section 8.16 (Register). To the extent of any assignment pursuant to subclause (b) of this Section 8.4 (Benefit of Agreement), the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Lender Note (or Confirmation of Registration). Each Lender and the Borrower agree to execute such documents (including ~~without limitation~~ amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any Lender from pledging its Lender Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Blue Owl Credit Income Corp.)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties ~~hereto,~~ hereto provided that no none of the Credit ~~Party --------~~ Parties may assign or transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ the ~~Lenders~~Purchasers. Each ~~Lender~~ Purchaser may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial ~~institution,~~ institution provided that in the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such ~~Lender~~ Purchaser in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Purchaser in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Company hereunder shall be determined as if such ~~Lender~~ Purchaser had not sold such participation, except that the participant shall be entitled to the benefits of ~~Sections 1.10, 1.11, 2.6 and 4.4~~ Section 2.8 of this Agreement to the extent that such ~~Lender~~ Purchaser would be entitled to such benefits if the participation had not been entered into or sold, and, ~~provided,~~ provided further, ; that no ~~-------- ------- Lender~~ Purchaser shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any ~~Loan or~~ Note in which such participant is participating (it being understood that any waiver of ~~the application of~~ any prepayment ~~or the method of any application of any prepayment to, the amortization of the Term Loans~~ shall not constitute ~~a waiver of any Scheduled Repayment or~~ an extension of ~~the~~ such final ~~maturity date~~scheduled maturity), or reduce the rate or extend the time of payment of interest ~~or Fees~~ thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release ~~any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release~~ all or substantially all of the Collateral or (iviii) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, ~~with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x)~~ any ~~Lender~~ Purchaser may assign all or a portion of its ~~Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments~~ outstanding Notes and its rights and obligations hereunder to one or more ~~Eligible Transferees (including one or more Lenders). Any~~ Persons who shall, from and after the effective date of such assignment ~~pursuant~~ be deemed to ~~this Section 12.4(b) need not~~ be ~~ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence~~"Purchasers" hereunder. No assignment pursuant to the immediately preceding sentence ~~(i) shall~~ shall, to the extent such assignment represents an assignment to an institution other than one or more ~~Lenders~~ Purchasers hereunder, be in an aggregate amount less than $US$5,000,000 unless ~~the entire Commitment and Loans~~ all of Notes of the assigning ~~Lender~~ Purchaser are so ~~assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility~~assigned. If any ~~Lender~~ Purchaser so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning ~~Lender~~ Purchaser shall thereafter refer to such ~~Lender~~ Purchaser and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same obligations, rights and benefits as it would if it were such assigning ~~Lender~~Purchaser. Each assignment pursuant to this Section ~~12.4(b~~13.4(b) shall be effected by the assigning ~~Lender~~ Purchaser and the assignee ~~Lender~~ Purchaser executing an Assignment ~~Agreement substantially in the form of Exhibit D (appropriately completed)~~Agreement. ~~In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at~~ At the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such ~~assignment occurs after the Initial Borrowing Date~~assignment, the ~~Borrower~~ Company will issue new Notes to the respective assignee and to the assigning ~~Lender in conformity with~~ Purchaser. Neither of the ~~requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other~~ Credit ~~Documents) as~~ Parties shall be ~~necessary to effect~~ responsible for the ~~foregoing. Nothing~~ payment of any expense in ~~this clause (b) shall prevent or prohibit~~ connection with any ~~Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by~~ such ~~Lender from such Federal Reserve Bank~~assignment. (c) Notwithstanding any other provisions of this Section ~~12.4~~13.4, no transfer or assignment of the interests or obligations of any ~~Lender~~ Purchaser hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the ~~Borrower or Holdings~~ Company to file a registration statement with the ~~SEC or to qualify the Loans under the "Blue Sky" laws of any State~~Commission. (d) Each ~~Lender~~ Purchaser initially party to this Agreement hereby represents, and each Person that became a ~~Lender~~ Purchaser pursuant to an assignment permitted by this Section 12 13.4 will, upon its becoming party to this Agreement, represent that it is ~~a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D)~~ an Eligible Transferee which makes ~~or acquires loans~~ loans, and/or acquire promissory notes, in the ordinary course of its business and that it will ~~make or~~ acquire ~~Loans~~ Notes for its own account in the ordinary course of such ~~business,~~ business provided ~~--------~~ that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such ~~Lender~~ Purchaser shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Note Purchase Agreement (Tokheim Corp)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations under this Agreement (including all or a portion of any of its Commitments and the Loans at the time owing to it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) the Administrative Agent and, so long as no Default or Event of Default exists or is continuing, Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is an Affiliate of the assigning Lender (in which case no consent from the Administrative Agent or the Borrower is required), (ii) the amount of the Commitments or Loans, in the case of assignment of Loans, of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, unless such amount constitutes the entire remaining Commitment and Loans of the assigning Lender, (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2500, (iv) so long as no Default has occurred hereunder and is continuing, each of SunTrust and First Union agrees that it shall maintain at all times a Commitment at least equal to ~~another~~ the lesser of (A) $20,000,000 and (B) the amount of the largest Commitment of any other Lender, unless the Borrower shall otherwise give its consent to a Commitment in a lesser amount, and (yv) so long as no Default has occurred hereunder and is continuing, there may be no more than six (6) Lenders under this Agreement at any one time. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender ~~may assign~~ or the Administrative Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and, if applicable, new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments or amount of its retained Loans. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Borrower, the Administrative Agent or the Agent, sell participations to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Commitments in the Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunderNotes held by it), ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or such Lender's obligations under ~~the Notes, any reference in~~ this Agreement ~~or the Notes to~~ shall remain unchanged, (iii) such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the performance of such obligations, (iv) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article IV of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiv) ~~if any such assignment occurs after the Initial Borrowing Date~~Borrower, the ~~Borrower will issue new Notes~~ Agent, the Administrative Agent and the other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Borrower relating to the Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of ~~and as agent~~ Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower shall maintain at its Payment Office a copy~~ purpose of ~~each Assignment Agreement delivered~~ making any necessary credit judgments with respect to ~~it (as required hereby)~~ this credit facility and ~~a register (~~not to use the ~~"Register") for --------~~ information in any manner prohibited by any law, including without limitation, the ~~recordation~~ securities laws of the ~~names and addresses~~ United States. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors, affiliates or counsel to whom it is necessary to show such information, each of whom shall be informed of the ~~Lenders and the registered owners~~ confidential nature of the ~~Qualified Non-U.S. Lender Notes~~ information, (~~including Qualified Non-U.S. Lender Noteholders~~ii) ~~and the Commitment of~~in any statement or testimony pursuant to a subpoena or order by any court or Governmental Agency asserting jurisdiction over such entity, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time or as otherwise required by law or regulatory process (provided prior notice is given 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 treat each Person whose name is recorded in~~ Agent unless otherwise prohibited by the ~~Register as~~ subpoena, order or law and except for routine bank regulatory examinations), and (iii) upon the ~~owner~~ request or demand of ~~the Loan~~ any regulatory agency or ~~Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary~~authority with proper jurisdiction. The ~~Register~~ proposed participant or assignee shall ~~be available for inspection~~ further agree to return, upon request, all documents or other written material and copies thereof received from any Lender, the Agent, the Administrative Agent or Borrower relating to such confidential information unless otherwise properly disposed of or safeguarded by ~~the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice~~such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 3.07(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 3.10 or for its reduced rate of return pursuant to Section 3.16, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender, the ~~Note(s) held~~ Administrative Agent and the Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Total Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Revolving Credit Agreement (Oneita Industries Inc)

Benefit of Agreement. ~~(a)~~ This Agreement shall be binding ~~--------------------~~ upon the Contributors and Jefferson Holdings and each of their respective successors and assigns and shall inure to the benefit of the Contributors and ~~be enforceable by the~~ Jefferson Holdings and each of their respective successors and ~~assigns of the parties hereto~~assigns. Other than as contemplated by Section 5 hereof, ~~provided that~~ no ~~Credit Party --------~~ party hereto may assign ~~or transfer~~ any of its respective rights or obligations hereunder without the ~~prior written~~ consent of ~~all~~ each other party hereto; provided, that the ~~Lenders. Each Lender may at any time grant participations in any~~ rights and obligations of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement Jefferson Holdings or any of Contributor may be assigned to a Person that is the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participationsurviving, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into resulting or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except transferee entity in connection with a ~~waiver~~ merger or consolidation of Jefferson Holdings or such Contributor with such other Person or the ~~applicability~~ sale or disposal of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the ~~Collateral~~ assets of Jefferson Holdings or such Contributor to such other Person, so long as (iva) ~~consent~~ such surviving, resulting or transferee entity (i) expressly and unconditionally assumes, in a written instrument, the punctual performance and observance of all of the obligations and conditions of this Agreement to be performed by Jefferson Holdings or such Contributor, (ii) has a net worth at least equal to the net worth of Jefferson Holdings or such Contributor immediately preceding such merger or consolidation, or sale or disposition, with net worth being determined in accordance with generally accepted accounting principles, and (iii) with respect to FTAI only, is either subject to the informational requirements of the Securities Exchange Act of 1934, as amended, and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “SEC”) or has executed a Continuing Disclosure Agreement in a form which would satisfy the requirements of Rule 15c2-12 promulgated by the SEC (without regard to an exemption therefrom) if it had been an obligated person for which financial information or operating data of the general type required to be included in FTAI’s annual report filed with the SEC had been disclosed in an official statement in an offering of the Bonds and (b) such assignment does not have an adverse effect on any rating assigned to the Bonds. Notwithstanding the foregoing clauses (a)(i) and (ii), Jefferson Holdings and any Contributor may merge with, and Jefferson Holdings and any Contributor other than FTAI may consolidate with or ~~transfer by any Credit Party~~ sell or dispose of ~~any~~ all or substantially all of its ~~rights and obligations under this Agreement~~ assets to, Jefferson Holdings or any other ~~Credit Document~~Contributor. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Capital Call Agreement (Fortress Transportation & Infrastructure Investors LLC)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or -------- transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such ~~--------~~ participation, (i) the -------- participant shall not have any rights under this Agreement or any of the other ~~Credit~~ Loan Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections ~~1.10, 1.11, 2.6~~ 1.10 and ~~4.4~~ 4.04 of this Agreement to the extent that such Lender ------------- ---- would be entitled to such benefits if the participation had not been entered into or sold, (ii) 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 (iii) such Lender shall be solely responsible for any withholding taxes, and, ~~provided, further,~~ provided -------- further that no ~~-------- -------~~ Lender shall transfer, grant or assign any participation under ------- which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other ~~Credit~~ Loan Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute ~~a waiver of any Scheduled Repayment or~~ an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees ~~thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates)~~thereon, or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other ~~Credit~~ Loan Document. (b) Notwithstanding the foregoing, (i) with the consent of the Agent ~~and the Borrower~~ (~~each of~~ which ~~consents~~ consent shall not be unreasonably ~~withheld), (x~~withheld or delayed) any Lender may assign all or a portion of its outstanding A Term Loans and/or ~~Commitments~~ B Term Loans and/or Revolving Commitment (or, if prior to the Initial Borrowing Date, its A Term Commitment and/or B Term Commitment) and its rights and obligations hereunder to another Lender, and (yii) with the consent of the Agent and the Borrower (which consent by the Agent and the Borrower shall not be unreasonably withheld or delayed and which consent by the Borrower shall not be required if there is continuing a Default or Event of Default), any Lender may assign all or a portion of its outstanding A Term Loans and/or ~~Commitments~~ B Term Loans and/or Revolving Commitment and its rights and obligations hereunder to one or more ~~Eligible Transferees~~ commercial banks, finance companies, insurance companies, funds or other financial institutions (including one or more Lenders)~~. Any~~ ; provided, that no consent of the -------- Agent or the Borrower shall be required with respect to the assignment ~~pursuant~~ by a Lender to ~~this Section 12.4(b) need not be ratable as among the Tranche~~ one of its Affiliates of all or a portion of such Lender's A Term ~~Loans, the Tranche~~ Loans and/or B Term Loans ~~and the Revolving Commitments of the assigning Lender except as provided in the next sentence~~only. No assignment pursuant to the immediately preceding sentence ~~(i)~~ shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment ~~and Loans~~ of the assigning Lender ~~are~~ is so ~~assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility~~assigned. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section ~~12.4(b~~12.04(b) shall ---------------- be effected by the ~~assigning Lender~~ execution and ~~the assignee Lender executing~~ delivery of an ~~Assignment Agreement~~ assignment agreement substantially in the form of Exhibit D 12.04 hereto (~~appropriately completed~~an "Assignment Agreement"). -------------------- In the event of any such assignment (A) to a ~~Person~~ commercial bank, finance company, insurance company, fund or other financial institution not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.nonrefundable

Appears in 1 contract

Samples: Credit Agreement (HCC Industries International)

Appears in 1 contract

Samples: Credit Agreement (Texas Genco Holdings Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that the Borrower (or after the Assumption Date no ~~Credit Party --------~~ Borrower or any Starwood Guarantor) may assign or transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that (x) in the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections ~~1.10, 1.11, 2.6~~ 1.10 and ~~4.4~~ 3.04 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or ~~sold, and, provided, further, that~~ sold and (y) no ~~-------- -------~~ Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the ~~amortization of the Term~~ Loans shall not constitute ~~a waiver of any Scheduled Repayment or~~ an extension of the final maturity date), or reduce the rate or extend the time of payment of interest ~~or Fees thereon~~ (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any ~~Commitment~~ commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document.it (b) Notwithstanding the foregoing~~, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld)~~, (x) any Lender may assign all or a portion of its outstanding Loans ~~and/or Commitments~~ and its rights and obligations hereunder to another Lender (or an Affiliate or Related Fund of such assigning Lender), and (y) with the consent of the Administrative Agents and (if no Event of Default exists) the Borrower (which consents shall not be unreasonably withheld), any Lender may assign all or a portion of its outstanding Loans ~~and/or Commitments~~ and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentenceTransferees. No assignment pursuant to the immediately preceding sentence by a Lender (ior by Lenders which are Affiliates and/or Related Funds of each other) ~~shall~~ shall, to the extent such assignment represents an assignment to an institution other than one or more Lenders ~~hereunder~~hereunder (or to an Affiliate or a Related Fund of an assigning Lender), be in an aggregate amount less than $5,000,000 unless the entire ~~Commitment and~~ Loans of the assigning Lender (or group of Lenders which are Affiliates and/or Related Funds) are so ~~assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility~~assigned. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section ~~12.4(b~~11.04(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement ~~substantially in the form of Exhibit D~~ (appropriately completed). In At the ~~event~~ time of any such ~~assignment to a Person not previously a Lender hereunder~~assignment, (i) either the assigning or the assignee Lender shall pay to the ~~Agent~~ Payments Administrator a nonrefundable assignment fee of $~~3,500, and at the time of any~~ 500 (if such assignment ~~pursuant~~ is between Lenders already party to this ~~Section 12.4(b~~Agreement (or Affiliates or Related Funds of such Lenders) or $2,000 (if otherwise), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if ~~any such assignment occurs after the Initial Borrowing Date~~requested, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section ~~1.5~~1.05. To the extent of any assignment pursuant to this Section 11.04(b) to a Person which is not already a Lender hereunder and which is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Payments Administrator the appropriate Internal Revenue Service Forms (and, if applicable, a Section 3.04 Certificate) described in Section 3.04(b). To the extent that an assignment of all or any portion of a Lender's Loans and related Obligations pursuant to this Section 11.04(b) would, at the time of such assignment, result in increased costs under Section 1.10 or 3.04 from those being charged by the respective assigning bank prior to such assignment, then the Borrower shall not be obligated to pay such increased costs (although the Borrower shall be obligated to pay any other increased costs of the type described above resulting from the changes specified in said Section 1.10 or 3.04 after the date of the respective assignment). Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank.to (c) Notwithstanding any other ~~provisions~~ provision of this Section ~~12.4~~11.04, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower ~~or Holdings~~ to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 11 will, upon its becoming party to this Agreement, represent that it is ~~a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D)~~ an Eligible Transferee which makes ~~or acquires~~ loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided ~~--------~~ that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Loan Agreement (Starwood Hotel & Resorts Worldwide Inc)

Benefit of Agreement. (a) ~~This~~ The provisions of this Term Loan Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of the parties hereto and ~~be enforceable by the~~ their respective successors and assigns of permitted hereby, except that the ~~parties hereto, provided that no Credit Party --------~~ Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the ~~Lenders~~provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). ~~Each~~ Nothing in this Term Loan Agreement, expressed or implied, shall be construed to confer upon any Person (other than the Arrangers, the Administrative Agent, the parties hereto, their respective successors and assigns permitted hereby and Participation Purchasers to the extent provided in subsection (d) of this Section) any legal or equitable right, remedy or claim under or by reason of this Term Loan Agreement. (b) Any Lender may at any time ~~grant participations~~ assign to one or more Eligible Assignees (subject to the consent of certain Persons as set forth in ~~any~~ the definition thereof) all or a portion of its rights ~~hereunder~~ and obligations under this Term Loan Agreement (including all or ~~under any~~ a portion of its Commitment and the ~~Notes~~ Loans at the time owing to ~~another financial institution,~~ it); provided that (i) except in the case of ~~any such -------- participation~~an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the ~~participant~~ aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not ~~have any~~ be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed), provided, however, that the Borrower’s failure to respond within ten (10) days of receipt of written notice of such assignment shall be deemed to be Borrower’s approval thereof; (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 Term Loan Agreement with respect to the Loans or the Commitment assigned; and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500. No such assignment shall be made 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. 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 ~~Credit Documents~~ 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 ~~participant's~~ 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 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 Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment of rights ~~against~~ 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. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Term Loan Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Term Loan Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Term Loan Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Term Loan Agreement, such Lender ~~in respect of such participation~~ shall cease to be ~~those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder~~ a party hereto but shall ~~be determined as if such Lender had not sold such participation, except that the participant shall~~ continue to be entitled to the benefits of Sections ~~1.10, 1.11, 2.6~~ 4.1 through 4.4 and ~~4.4 of this Agreement~~ 11.5 with respect to facts and circumstances occurring prior to the ~~extent that~~ effective date of such ~~Lender would be entitled to such benefits if the participation had not been entered into or sold, and,~~ assignment); provided, ~~further,~~ that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent ~~such amendment or waiver would (i) waive any Scheduled Repayment or extend~~ otherwise expressly agreed to by the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment toaffected parties, ~~the amortization of the Term Loans shall not~~ no assignment by a Defaulting Lender will constitute a waiver or release of any ~~Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability~~ claim of any ~~post-default increase in interest rates)~~party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, ~~or reduce~~ the ~~principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect~~ Borrower (~~it being understood that~~ at its expense) shall execute and deliver a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent Note to the assignee Lender. Any assignment or transfer by ~~any Credit Party~~ a Lender of ~~any~~ rights or obligations under this Term Loan Agreement that does not comply with this subsection shall be treated for purposes of ~~its~~ this Term Loan Agreement as a sale by such Lender of a participation in such rights and obligations ~~under~~ in accordance with subsection (d) of this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve BankSection. (c) ~~Notwithstanding any other provisions of~~ The Administrative Agent, acting solely for this ~~Section 12.4, no transfer or assignment~~ purpose as a non-fiduciary agent of the ~~interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer~~Borrower, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at one of its ~~Payment Office~~ offices in the United States a copy of each Assignment ~~Agreement~~ and Assumption delivered to it ~~(as required hereby)~~ and a register ~~(the "Register")~~ for ~~--------~~ the recordation of the names and addresses of the ~~Lenders~~ Lenders, and the ~~registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment~~ Commitments of, and principal ~~amount~~ amounts of the ~~Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term~~ Loans owing to, each Lender pursuant to the terms hereof from time to ~~time~~time (the “Register”). The entries in the Register shall be ~~conclusive, in the absence of~~ conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as ~~the owner of the Loan or Qualified Non-U.S.~~ a Lender ~~Note recorded therein~~ hereunder for all purposes of this Term Loan Agreement, notwithstanding ~~any~~ notice to the contrary. The Register shall be available for inspection by the Borrower or and any ~~Lender~~ Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participation Purchaser”) in all or a portion of such Lender’s rights and/or obligations under this Term Loan Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Term Loan Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Term Loan Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Term Loan Agreement and to approve any amendment, modification or waiver of any provision of this Term Loan Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participation Purchaser, agree to any amendment, waiver or other modification described in clauses (a) through (g) of Section 11.6 that directly affects such Participation Purchaser. Subject to subsection (e) of this Section, the Borrower agrees that each Participation Purchaser shall be entitled to the benefits of Sections 4.1 through 4.4 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participation Purchaser also shall be entitled to the benefits of Section 11.2 as though it were a Lender, provided such Participation Purchaser agrees to be subject to Section 3.8 as though it were a Lender. (e) A Participation Purchaser shall not be entitled to receive any greater payment under Section 4.2 or 4.4 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participation Purchaser, unless the sale of the participation to such Participation Purchaser is made with the Borrower’s prior written consent. A Participation Purchaser that would be a “foreign corporation, partnership or trust” within the meaning of the Code if it were a Lender shall not be entitled to the benefits of Section 4.4 unless the Borrower is notified of the participation sold to such Participation Purchaser and such Participation Purchaser agrees, for the benefit of the Borrower, to comply with Section 4.4(d) as though it were a Lender. (f) Any ~~Non~~Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Term Loan Agreement (including under its Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle managed or sponsored by the Granting Lender or an Affiliate thereof (an “SPC”) the option to fund all or any part of any Loan that such Granting Lender would otherwise be obligated to fund pursuant to this Term Loan Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to fund all or any part of such Loan, the Granting Lender shall be obligated to fund such Loan pursuant to the terms hereof, (iii) no SPC shall have any voting rights pursuant to Section 11.6, (iv) with respect to notices, payments and other matters hereunder, the Borrower, the Administrative Agent and the Lenders shall not be obligated to deal with an SPC, but may limit their communications and other dealings relevant to such SPC to the applicable Granting Lender and (v) each Granting Lender’s obligations under this Term Loan Agreement shall remain unchanged. Each party hereto agrees that no SPC will be entitled to any rights or benefits except as expressly set forth in this subsection (g). The funding of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent that, and as if, such Loan were funded by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or payment under this Term Loan Agreement for which a Lender would otherwise be liable for so long as, and to the extent, the Granting Lender provides such indemnity or makes such payment. Notwithstanding anything to the contrary contained in this Term Loan Agreement, any SPC may disclose on a confidential basis any non-~~U.S.~~ public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or guarantee to such SPC. This subsection (g) may not be amended without the prior written consent of each Granting Lender, all or any part of whose Loan is being funded by an SPC at the time of such amendment. (h) Notwithstanding anything to the contrary contained herein, any Lender that ~~could become completely exempt~~ is a Fund may create a security interest in all or any portion of the Loans owing to it and the Notes, if any, held by it to the trustee for holders of obligations owed, or securities issued, by such Fund as security for such obligations or securities, provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 11.3, (i) no such pledge shall release the pledging Lender from ~~withholding~~ any of its obligations under the Credit Documents and (ii) such trustee shall not be entitled to exercise any ~~United States federal income taxes in respect~~ of ~~payment~~ the rights of ~~any interest due to such Non-U.S.~~ a Lender under ~~this Agreement~~ the Credit Documents even though such trustee may have acquired ownership rights with respect to the pledged interest through foreclosure or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notesotherwise.

Appears in 1 contract

Samples: Term Loan Agreement (Alabama Power Co)

Benefit of Agreement. (a1) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders~~. Each~~ . (2) Any Lender may ~~at any time grant participations in~~ make, carry or transfer Line of Credit Loans at, to or for the account of, any of its ~~rights hereunder~~ branch offices or ~~under any~~ the office of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect an Affiliate of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit DocumentLender. (b3) ~~Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Line of Credit Commitments and the Line of Credit Loans at the time owing to ~~another~~ it and the Line of Credit Notes held by it) to any Eligible Assignee; PROVIDED, HOWEVER, that (i) the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is an Affiliate of the assigning Lender, (ii) the amount of the Line of Credit Commitments of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $10,000,000, and (yiii) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a Line of Credit Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender ~~may assign~~ or the Administrative Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Line of Credit Note or Notes, a new Line of Credit Note or Notes to the order of such assignee in a principal amount equal to the applicable Line of Credit Commitments or Line of Credit Loans assumed by it pursuant to such Assignment and Acceptance and new Line of Credit Note or Notes to the assigning Lender in the amount of its retained Line of Credit Commitment or Commitments or amount of its retained Line of Credit Loans. Such new Line of Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Line of Credit Note or Notes, shall be dated the date of the surrendered Line of Credit Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (4) Each Lender may, without the consent of Borrower or the Administrative Agent, sell participations without restriction to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Line of Credit Commitments in the Line of Credit Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the ~~Revolving Commitments~~ Line of ~~the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Credit Notes held by it), PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder~~remain unchanged, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the performance of such obligations, (iii) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article III of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiiv) ~~if any such assignment occurs after~~ Borrower and the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ Administrative Agent and other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents, and such Lender shall retain the sole right to enforce the obligations of Borrower relating to the Line of Credit Loans and to approve any amendment, modification or waiver of any provisions of this Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower of the name of such participant. (5) as Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States of America. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be ~~necessary~~ informed of the confidential nature of the information, (ii) in any statement or testimony pursuant to ~~effect~~ a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the ~~foregoing~~Administrative Agent unless otherwise prohibited by the subpoena, order or law), and (iii) upon the request or demand of any regulatory agency or authority with proper jurisdiction. ~~Nothing~~ The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from any Lender, the Administrative Agent or Borrower relating to such confidential information unless otherwise properly disposed of by such entity. (6) Any Lender may at any time assign all or any portion of its rights in this ~~clause (b) shall prevent or prohibit any Lender from pledging its~~ Agreement and the Line of Credit Notes ~~or Loans~~ issued to it to a Federal Reserve ~~Bank in support of borrowings made by~~ Bank; PROVIDED that no such assignment shall release the Lender from ~~such Federal Reserve Bank~~any of its obligations hereunder. (c7) ~~Notwithstanding~~ If (i) any ~~other provisions~~ Taxes referred to in Section 3.07(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of ~~this Section 12.4, no transfer or assignment of the interests or obligations of~~ additional amounts to any Lender ~~hereunder or~~ as a result thereof, (ii) any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall ~~at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent~~ make demand for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 3.10 or for its reduced rate of return pursuant to Section 3.16, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the ~~Note(s) held~~ Administrative Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Line of Credit Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Line of Credit Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Line of Credit Agreement (Hughes Supply Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of all the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Commitments and the Loans at the time owing to ~~another~~ it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) the Agent and Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is to an Affiliate of the assigning Lender, (ii) the amount of the Commitments, in the case of the Revolving Loan Commitments and the Term Loan Commitments, or Loans, in the case of assignment of Loans, of the assigning Lender subject to each assignment (ydetermined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent) shall not be less than $10,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and a processing and recordation fee of $3,500 payable by the Assignee. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender ~~may assign~~ or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments or amount of its retained Loans. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Borrower and the Agent, sell participations to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Commitments in the Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the ~~Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Notes held by it), provided, however, that (i) such Lender's obligations under this Agreement shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder~~remain unchanged, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the performance of such obligations, (iii) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article IV of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiiv) ~~if any such assignment occurs after~~ Borrower and the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ Agent and other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Borrower relating to the Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower and Agent of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of ~~and as agent~~ Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower~~ purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States. The proposed participant or assignee shall ~~maintain at its Payment Office~~ agree in writing, a copy of which shall be furnished to Borrower, not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each ~~Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation~~ of whom shall be informed of the ~~names and addresses~~ confidential nature of the ~~Lenders~~ information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the ~~registered owners of~~ Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeany regulatory agency or authority with proper jurisdiction. The ~~entries in the Register~~ proposed participant or assignee shall ~~be conclusive, in the absence of manifest error,~~ further agree to return all documents or other written material and ~~the Borrower~~copies thereof received from any Lender, the Agent ~~and the Lenders may treat each Person whose name is recorded in the Register as the owner~~ or Borrower relating to such confidential information unless otherwise properly disposed of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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~~such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 4.7(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 4.10 or for its reduced rate of return pursuant to Section 4.16, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the ~~Note(s) held~~ Agent, such Lender shall assign, in accordance with the provisions of Section 11.6(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Total Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Revolving Credit and Term Loan Agreement (Planet Hollywood International Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Line of Credit Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Line of Credit Commitments and the Line of Credit Loans at the time owing to ~~another~~ it and the Line of Credit Notes held by it) to any Eligible Assignee; provided, however, that (i) the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is an Affiliate of the assigning Lender, (ii) the amount of the Line of Credit Commitments of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $10,000,000, and (yiii) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a Line of Credit Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender ~~may assign~~ or the Administrative Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Line of Credit Note or Notes, a new Line of Credit Note or Notes to the order of such assignee in a principal amount equal to the applicable Line of Credit Commitments or Line of Credit Loans assumed by it pursuant to such Assignment and Acceptance and new Line of Credit Note or Notes to the assigning Lender in the amount of its retained Line of Credit Commitment or Commitments or amount of its retained Line of Credit Loans. Such new Line of Credit Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Line of Credit Note or Notes, shall be dated the date of the surrendered Line of Credit Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Borrower or the Administrative Agent, sell participations without restriction to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Line of Credit Commitments in the Line of Credit Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the ~~Revolving Commitments~~ Line of ~~the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Credit Notes held by it), provided, however, that (i) such Lender's obligations under this Agreement shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder~~remain unchanged, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the performance of such obligations, (iii) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article III of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiiv) ~~if any such assignment occurs after~~ Borrower and the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ Administrative Agent and other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Borrower relating to the Line of Credit Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. The Register shall be available for inspection by the Borrower or any ~~Lender at~~ other Consolidated Company. With respect to any ~~reasonable time~~ disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States of America. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the confidential nature of the information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the Administrative Agent unless otherwise prohibited by the subpoena, order or law), and (iii) upon the request or demand of any regulatory agency or authority with proper jurisdiction. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from ~~time~~ any Lender, the Administrative Agent or Borrower relating to ~~time upon reasonable prior notice~~such confidential information unless otherwise properly disposed of by such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Line of Credit Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 3.07(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 3.10 or for its reduced rate of return pursuant to Section 3.16, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the ~~Note(s) held~~ Administrative Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Line of Credit Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Line of Credit Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Line of Credit Agreement (Hughes Supply Inc)

Appears in 1 contract

Samples: Credit Agreement (Endurance Specialty Holdings LTD)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections ~~1.10, 1.11, 2.6~~ 1.10 and ~~4.4~~ 4.04 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, ~~provided, further,~~ provided further that no ~~-------- -------~~ Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan or ~~Note~~ Letter of Credit (unless such Letter of Credit is not extended beyond the Final Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute ~~a waiver of any Scheduled Repayment or~~ an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Subsidiary Guarantor from its obligations under ~~its~~ the Subsidiary Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, ~~with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ (x) any Lender may assign all or a portion of its outstanding Term Loans and/or ~~Commitments~~ Revolving Commitment and its rights and obligations hereunder to another Lender, and (y) with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), any Lender may assign all or a portion of its outstanding Term Loans and/or ~~Commitments~~ Revolving Commitment and its rights and obligations hereunder to one or more ~~Eligible Transferees~~ commercial Lenders or other financial institutions (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence ~~(i)~~ shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment ~~and Loans~~ of the assigning Lender ~~are~~ is so ~~assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility~~assigned. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section ~~12.4(b~~12.04(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D L (appropriately completed). In At the ~~event~~ time of any such ~~assignment to a Person not previously a Lender hereunder~~assignment, (i) either the assigning or the assignee Lender shall pay to the Administrative Agent a nonrefundable assignment fee of $3,500, ~~and at the time of any assignment pursuant to this Section 12.4(b),~~ (iii) Annex ~~1.1~~ I shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (iiiii) ~~if any such assignment occurs after~~ upon the ~~Initial Borrowing Date~~request of the assignee and/or assigning Lender, the Borrower will issue ~~new~~ Notes to the respective assignee ~~and~~ and/or to the assigning Lender in conformity with the requirements of Section ~~1.5~~1.05. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section ~~12.4~~12.04, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower ~~or Holdings~~ to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes ~~or acquires~~ loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided ~~--------~~ that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Hci Direct Inc)

Appears in 1 contract

Samples: Term Loan Credit Agreement (Choicepoint Inc)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that no Credit Party --------~~ however, the Company may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the ~~Lenders. Each Lender~~ Banks. (b) Notwithstanding anything to the contrary contained above, any Bank may ~~at any time grant~~ sell participations in ~~any~~ all or, if less, in at least $5,000,000 (or such lesser amount as may be approved by the Company, which approval shall not be unreasonably withheld) of ~~its~~ such Bank's rights hereunder ~~or under any of the Notes~~ to another ~~financial institution~~Bank or other entity, ~~provided that~~ in ~~the case of any such -------- participation,~~ which event the participant shall not have any rights under this Agreement or any ~~of the~~ Note or any other ~~Credit Documents (~~document delivered in connection herewith or therewith, the participant's rights against such ~~Lender~~ Bank in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Bank in favor of the participant relating thereto~~) and all amounts payable by the Borrower hereunder~~ , which agreement shall ~~be determined as if~~ not restrict such ~~Lender had not sold such participation~~Bank's ability to make any modification, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of to this Agreement or any ~~other Credit Document~~ Note without the consent of the participant except that the consent of such participant may be required to ~~the extent such amendment or waiver would~~ (i) ~~waive any Scheduled Repayment or~~ extend the final ~~scheduled~~ maturity of any ~~Loan~~ Loan, Note or ~~Note~~ Letter of Credit (unless such Letter of Credit is not extended beyond the Expiry Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or ~~Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates)~~fees thereon, or reduce the principal amount thereof, or increase ~~such~~ the amount of the participant's ~~participating interest in any Commitment~~ participation over the amount ~~thereof~~ then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment, or a mandatory prepayment,~~ Commitment shall not constitute a change in the terms of any Commitment), ) or (ii~~) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv~~) consent to the assignment or transfer by ~~any Credit Party~~ the Company of any of its rights and obligations under this ~~Agreement or any other Credit Document~~Agreement, and all amounts payable by the Company under Sections 1.11, 1.12, 2.06 and 4.03 shall be determined as if the Bank had not sold such participation. (bc) Notwithstanding the foregoing, ~~with~~ any Bank may assign to one or more banks or other financial institutions all or a portion of its Commitment and related outstanding Obligations hereunder pursuant to an Assignment and Acceptance to be executed by such assignor and assignee Bank; provided, however, that, except as provided in Section 11.04(e), (i) the amount of the Commitment of the assignor Bank being assigned pursuant to each such assignment (determined as of the effective date of such assignment) shall, if less than the remaining amount of such assigning Bank's Commitment, not be less than $5,000,000 in the case of an assignment to a then existing Bank or $10,000,000 in the case of an assignment to another bank or other financial institution, (ii) the consent of the ~~Agent~~ Company and the ~~Borrower~~ Agent shall be required for all assignments to banks and other financial institutions other than to a then existing Bank or to the parent company or any affiliate of such Bank which is at least 50% owned by such Bank or its parent company (~~each of~~ which consents shall not be unreasonably withheld)) and (iii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with the Note subject to such assignment and a processing and recordation fee of $2,500. In the event that a Bank requests the Company's consent to any assignment which requires such consent, the Company shall have the right (upon notice to such Bank and the Agent) to find a replacement bank or other financial institution (reasonably acceptable to the Agent) to purchase such assignment from such Bank so long as such purchase is on the same terms and conditions as originally proposed by such Bank and is consummated within seven Business Days after the Company's consent is originally requested. In the event that the conditions set forth in the immediately preceding sentence are not satisfied, or the Company elects not to find a replacement assignee, such Bank may consummate its original assignment subject to the satisfaction of the conditions set forth in the second preceding sentence. Upon the execution, delivery, acceptance and recording of an Assignment and Acceptance, from and after the effective date specified in each such Assignment and Acceptance, (x) ~~any Lender may assign all or~~ the assignee thereunder shall be a ~~portion of its Loans and/or Commitments and its~~ party hereto and, to the extent that rights and obligations hereunder have been assigned to ~~another Lender~~it pursuant to such Assignment and Acceptance, have the rights and obligations of a Bank hereunder, (y) ~~any Lender may assign all or a portion of its Loans and/or Commitments and its~~ the assignor Bank thereunder shall, to the extent that rights and obligations hereunder ~~to one or more Eligible Transferees (including one or more Lenders). Any assignment~~ have been assigned by it pursuant to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans~~such Assignment and Acceptance, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of relinquish its rights ~~hereunder or~~ and be released from its obligations under ~~the Notes, any reference in~~ this Agreement ~~or the Notes to~~ and (2) at such ~~assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have~~time, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex ~~1.1~~ I hereto shall be deemed ~~to be amended~~ modified to reflect the ~~Commitment~~ Commitments of ~~the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender)~~ such new Bank and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any Stateexisting Banks. (d) ~~Each Lender initially party~~ Within ten Business Days after the effective date of any Assignment and Acceptance, the Company, at its own expense, shall execute and deliver to ~~this Agreement hereby represents, and each Person that became~~ the Agent in exchange for the surrendered Note a ~~Lender~~ new Note payable to the order of such assignee Bank in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assignor Bank has retained a Commitment hereunder, a new Note payable to the order of the assignor Bank in an ~~assignment permitted~~ amount equal to the Commitment retained by ~~this Section 12 will, upon its becoming party~~ it hereunder (such new Notes shall be in an aggregate principal amount equal to ~~this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in~~ the ~~ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course~~ aggregate principal amount of such ~~business~~surrendered Note, ~~provided -------- that subject to~~ shall be dated the ~~preceding clauses (a)~~ effective date of such Assignment and (bAcceptance and shall otherwise be in substantially the form of Exhibit B hereto)~~, the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control~~. (e) ~~The Agent acting~~ Notwithstanding anything to the contrary contained in this Section 11.04, any Bank may assign, as collateral or otherwise, any of its rights (including, without limitation, rights to payments of principal of and/or interest on ~~behalf of~~ the Notes) under this Agreement and ~~as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered~~ any Note to ~~it (as required hereby) and a register (the "Register") for -------- the recordation~~ any Federal Reserve Bank without notice to or consent of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowerCompany, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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~~Bank. (f) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Revolving Credit Agreement (Sunoco Logistics Partners Lp)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that~~ however, no ~~Credit Party --------~~ Borrower may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ each of the ~~Lenders. Each~~ Lenders and, provided further, that, although any Lender may at (without the consent of any ~~time~~ Credit Party) transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights~~ Commitments or Loans hereunder except as provided in Section 13.04(b)) and the transferee, assignee or ~~under any of~~ participant, as the ~~Notes to another financial institution~~case may be, shall not constitute a “Lender” hereunder and, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no ~~-------- -------~~ Lender shall ~~transfer,~~ transfer or grant ~~or assign~~ any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan, Note, or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan ~~or Note~~ Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any post-default increase in interest rates), ) or reduce the principal amount thereof, or increase ~~such~~ the amount of the participant~~'s participating interest in any Commitment~~ ’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment,~~ Commitment or of a mandatory ~~prepayment,~~ repayment of Loans shall not constitute a change in the terms of such participation, that an increase in any ~~Commitment~~Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement (other than a modification of the percentages set forth in the definition of “Applicable Margin”) shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), notwithstanding the fact that such amendment or modification actually results in such a reduction), (ii) ~~release~~ consent to the assignment or transfer by any ~~Guarantor from~~ Borrower of any of its rights and obligations under ~~its Guaranty except in accordance with the terms thereof,~~ this Agreement or (iii) release all or substantially all of the Collateral or under all of the Security Documents (ivexcept as expressly provided in the Security Documents) ~~consent to~~ supporting the ~~assignment or transfer by any Credit Party~~ Obligations in which such participant is participating. In the case of any ~~of its~~ such participation, (A) the participant shall not have any rights ~~and obligations~~ under this Agreement or any of the other Credit ~~Document~~Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrowers hereunder shall be determined as if such Lender had not sold such participation, (B) following a Conversion Event each participant in respect of any Term Loans shall be entitled to receive from relevant Borrowers any incremental costs and indemnities (including, without limitation, pursuant to Section 1.10, 1.11, 2.06 and 4.04) directly from the applicable Borrowers to the same extent as if it were the direct Lender as to which its interests were assigned after the occurrence of a Conversion Event as opposed to a participant therein, which incremental costs shall be calculated without regard to Section 1.12 and (C) each participant in respect of any Term Loans shall have acknowledged in writing that it is bound by the terms of the Re-allocation Agreement. (b) Notwithstanding the foregoing, any Lender (or any Lender together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Lenders) may (x) ~~any Lender may~~ assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder), and/or its outstanding Term Loans to (i) its parent company and/or ~~Commitments~~ any affiliate of such Lender which is at least 50% owned by such Lender or its parent company, (ii) one or more Lenders or (iii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and ~~its rights and obligations hereunder to another Lender, and~~ is managed by the same investment advisor as a Lender or by an Affiliate of such investment advisor or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $1,000,000 in the aggregate for the assigning Lender or assigning Lenders, of ~~its~~ such Revolving Loan Commitments (and related outstanding Obligations hereunder) and/or outstanding principal amount of Term Loans ~~and/or Commitments and its rights and obligations~~ hereunder to one or more Eligible Transferees (~~including one~~ treating (I) any fund that invests in bank loans and (II) any other fund that invests in bank loans and is managed by the same investment advisor as such fund or ~~more~~ by an Affiliate of such investment advisor, as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments and/or outstanding Term Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) upon request of assigning or assignee Lender, and upon surrender of the old Notes (if any) or a lost Note(s) indemnity in form reasonably satisfactory to the Administrative Agent, new Notes will be issued, at the Borrowers’ expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Revolving Loan Commitments and/or outstanding Term Loans, as the case may be, (iii) except in the case of assignments made by the Agents prior to the Syndication Date and as part of the primary syndication of the Loans and Commitments, the consent of the Administrative Agent and, so long as no Default or Event of Default then exists and is continuing, the Borrowers shall be required in connection with any such assignment pursuant to clause (y) of this Section 13.04(b) (which consent shall not be unreasonably withheld or delayed)~~. Any~~ , (iv) the consent of the Swingline Lender, the Fronting Lender (unless such assignment is to a Person that will not be a Participating Specified Foreign Currency Lender) and each Issuing Lender shall be required in connection with any assignment of Revolving Loan Commitments pursuant to this Section ~~12.4(b~~13.04(b) ~~need~~ (which consent shall not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one unreasonably withheld or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided thereindelayed), (v) the ~~same rights and benefits as it would if it were~~ Administrative Agent shall receive at the time of each such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunderassignment, ~~either~~ from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $3,500, ~~and~~ (vi) at the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a TL Lender hereunder, the respective assignee shall have acknowledged in writing (which may be in the executed Assignment and Assumption Agreement) that it is bound by the terms of the Re-Allocation Agreement and (vii) each assignment by any Participating Specified Foreign Currency Lender shall require a Specified Foreign Currency Participation Settlement with respect to such Participating Specified Foreign Currency Lender unless the Fronting Lender agrees in its sole discretion that the respective assignee shall succeed such Participating Foreign Currency Lender as a Participating Foreign Currency Lender itself, in which case such assignee shall acquire the Specified Foreign Currency Participation of the respective assignor and, provided further, that such transfer or assignment will not be effective until recorded by the Administrative Agent on the Register pursuant to Section 13.17. To the extent of any assignment pursuant to this Section ~~12.4(b~~13.04(b), ~~(i) Annex 1.1~~ the assigning Lender shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Commitments and/or outstanding Term Loans, as the case may be. At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall, to the extent legally entitled to do so, provide to Exide U.S. and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b)(ii) to the extent such forms would provide a complete exemption from or reduction in United States withholding tax. At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall, to the extent legally entitled to do so, provide to the European Borrower and the Administrative Agent the appropriate Netherlands Forms or such other forms or certificates described in Section 4.04(c) to the extent the European Borrower requests the assigned Lender to provide such forms or certificates and such forms or certificates would provide a complete exemption from or reduction in Netherlands withholding tax. To the extent that prior to the occurrence of a Termination Event an assignment of all or any portion of a Lender’s Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrowers shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrowers, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee (which shall result in a direct reduction~~ assignment). Notwithstanding anything to the ~~Commitment~~ contrary contained above, at any time after the termination of the ~~assigning Lender) and~~ Total Revolving Loan Commitment, if any Revolving Loans or Letters of Credit remain outstanding, assignments may be made as provided above, except that the respective assignment shall be of a portion of the ~~other Lenders~~outstanding Revolving Loans of the respective ABL Lender and its participation in Letters of Credit and its obligation to make Mandatory Borrowings, ~~and (ii) if~~ although any such assignment ~~occurs~~ effected after the ~~Initial~~ termination of the Total Revolving Loan Commitment shall not release the assigning ABL Lender from its obligations as a participant with respect to outstanding Letters of Credit or to fund its share of any Mandatory Borrowing ~~Date, the Borrower will issue new Notes to~~ (although the respective assignee ~~and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender~~ may agree, as between itself and the ~~Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as~~ respective assigning ABL Lender, that it shall be ~~necessary to effect the foregoing.~~ responsible for such amounts). (c) Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve ~~Bank.~~ Bank and, with prior notification to the Administrative Agent (but without the consent of the Administrative Agent or any Borrower), any Lender which is a fund may pledge all or any portion of its Notes or Loans to its trustee or to a collateral agent or to another creditor providing credit or credit support to such Lender in support of its obligations to such trustee, such Collateral Agent or a holder of, or any other representative of a holder of, such obligations, or such other creditor, as the case may be. No pledge pursuant to this clause (c) ~~Notwithstanding~~ shall release the transferor Lender from any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlobligations hereunder. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Exide Technologies)

Appears in 1 contract

Samples: Credit Agreement (Tsecrp Inc)

Appears in 1 contract

Samples: Credit Agreement (Noble Drilling Corp)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that no Credit Party --------~~ however, none of the Borrowers nor any Guarantor may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations hereunder~~ interest under any Credit Document without the prior written consent of ~~all~~ the Lenders~~. Each~~ ; and provided, further, that, although any Lender may ~~at any time~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder (and may not transfer or assign all or any portion of its Commitment hereunder except as provided in Section 12.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a "Lender" hereunder; and provided, further, that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of any Credit Document except to the extent such amendment or waiver would (i) extend the Maturity Date, or reduce the rate or extend the time of payment of interest or Fees on Loans or Letters of Credit in which such participant is participating (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof (it being understood that any amendment or modification to the xxxxx- cial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Revolving Loan Commitment shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) consent to the assignment or transfer by the Company of its rights ~~hereunder~~ and obligations under this Agreement or ~~under any~~ (iii) release all or substantially all of the ~~Notes to another financial institution,~~ Collateral under all of the Security Documents (except as expressly provided ~~that~~ in the Credit Documents) supporting the Loans in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under ~~this Agreement or~~ any of the ~~other~~ Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Company hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, any Lender (or any Lender together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Lenders) may (x) ~~any Lender may~~ assign all or a portion of its Tranche A Term Loan Commitment, Tranche B Term Loan Commitment, Revolving Loan Commitment and/or BTCo's commitment to make Swingline Loans ~~and/or Commitments~~ (and related outstanding Obligations hereunder) to any Affiliate of such Lender which is at least 50% owned by such Lender or its ~~rights and obligations hereunder~~ parent company or to ~~another Lender, and~~ one or more Lenders or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Lender or assigning Lenders, of ~~its Loans and/or Commitments~~ such Commitment (and ~~its rights and obligations hereunder~~ related outstanding Obligations hereunder) to one or more Eligible ~~Transferees (including one or more Lenders). Any assignment pursuant~~ Transferees, each of which assignees shall become a party to this ~~Section 12.4(b) need not be ratable~~ Agreement as ~~among the Tranche A Term Loans, the Tranche B Term Loans~~ a Lender by execution of an Assignment and ~~the Revolving Commitments of the assigning Lender except as~~ Assumption Agreement; provided ~~in the next sentence. No assignment pursuant to the immediately preceding sentence~~ that (i) at such time Annex I shall be deemed modified to reflect the ~~extent~~ Commitments of such ~~assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment~~ new Lender and ~~Loans~~ of the ~~assigning Lender are so assigned or~~ existing Lenders, (ii) ~~shall be effective if~~ upon surrender of the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the old Notes, ~~any reference in this Agreement or~~ new Notes will be issued, at the ~~Notes~~ Company's expense, to such ~~assigning Lender shall thereafter refer to such~~ new Lender and to the ~~respective assignee~~ assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments, (iii) the consent of ~~their respective interests and~~ the ~~respective assignee~~ Administrative Agent, which consent shall ~~have~~not be unreasonably withheld, ~~to the extent of~~ shall be required in connection with any -157- such ~~assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each~~ assignment pursuant to clause (y) of this Section ~~12.4(b~~12.04(b) and (iv) the Administrative Agent shall ~~be effected by~~ receive at the ~~assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form~~ time of ~~Exhibit D (appropriately completed). In the event of any~~ each such ~~assignment to a Person not previously a Lender hereunder~~assignment, ~~either~~ from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $3,500; and provided, ~~and at~~ further, that such transfer or assignment will not be effective until recorded by the ~~time~~ Administrative Agent on the Register pursuant to Section 7.12. To the extent of any assignment pursuant to this Section ~~12.4(b~~12.04(b), ~~(i) Annex 1.1~~ the assigning Lender shall be ~~deemed~~ relieved of its obligations hereunder with respect to ~~be amended~~ its assigned Commitment. At the time of each assignment pursuant to ~~reflect~~ this Section 12.04(b) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the ~~Commitment of~~ Code) for Federal income tax purposes, the respective assignee ~~(which~~ Lender shall ~~result in a direct reduction~~ provide to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender Company and the ~~Borrower agree to execute such documents~~ Administrative Agent the appropriate Internal Revenue Service Forms (~~including without limitation amendments to this Agreement and the other Credit Documents~~and, if applicable, a Section 4.04(b)(ii) ~~as shall be necessary to effect the foregoing.~~ Certificate) described in Section 4.04(b). (c) Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Superior Telecom Inc)

Benefit of Agreement. ~~(a)~~ This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; PROVIDED, ~~provided~~ HOWEVER, that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ the ~~Lenders~~Banks. Each ~~Lender~~ Bank may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution; PROVIDED, ~~provided~~ HOWEVER, that in the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such ~~Lender~~ Bank in respect of such participation to be those set forth in the agreement executed by such ~~Lender~~ Bank in favor of the participant relating thereto) and all amounts payable by ~~the~~ Borrower hereunder shall be determined as if such ~~Lender~~ Bank had not sold such participation, except that the participant shall be entitled to the benefits of Sections ~~1.10, 1.11, 2.6~~ 1.10 and ~~4.4~~ 4.04 of this Agreement to the extent that such ~~Lender~~ Bank would be entitled to such benefits if the participation had not been entered into or sold; PROVIDED, ~~and~~FURTHER, ~~provided, further~~HOWEVER, that no ~~-------- ------- Lender~~ Bank shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), ) or (ii~~) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv~~) consent to the assignment or transfer by ~~any Credit Party~~ Borrower of any of its rights and obligations under this ~~Agreement or any other Credit Document~~Agreement. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Global Marine Inc)

Appears in 1 contract

Samples: Credit Agreement (Davel Communications Inc)

Appears in 1 contract

Samples: Credit Agreement (Fairpoint Communications Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Revolving Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Revolving Loan Commitments and the Revolving Loans at the time owing to ~~another~~ it and the Revolving Notes held by it) to any Eligible Assignee; provided, however, that (i) the Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is an Affiliate of the assigning Lender, (ii) the amount of the Revolving Loan Commitments of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $10,000,000, and (yiii) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a Revolving Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender ~~may assign~~ or the Administrative Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Revolving Note or Notes, a new Revolving Note or Notes to the order of such assignee in a principal amount equal to the applicable Revolving Loan Commitments or Revolving Loans assumed by it pursuant to such Assignment and Acceptance and new Revolving Note or Notes to the assigning Lender in the amount of its retained Revolving Loan Commitment or Commitments or amount of its retained Revolving Loans. Such new Revolving Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Note or Notes, shall be dated the date of the surrendered Revolving Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Borrower or the Administrative Agent, sell participations without restriction to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Revolving Loan Commitments in the Revolving Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the Revolving ~~Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Notes held by it), provided, however, that (i) such Lender's obligations under this Agreement shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder~~remain unchanged, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the per formance of such obligations, (iii) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article III of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiiv) ~~if any such assignment occurs after~~ Borrower and the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ Administrative Agent and other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Borrower relating to the Revolving Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. The Register shall be available for inspection by the Borrower or any ~~Lender at~~ other Consolidated Company. With respect to any ~~reasonable time~~ disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States of America. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the confidential nature of the information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the Administrative Agent unless otherwise prohibited by the subpoena, order or law), and (iii) upon the request or demand of any regulatory agency or authority with proper jurisdiction. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from ~~time~~ any Lender, the Administrative Agent or Borrower relating to ~~time upon reasonable prior notice~~such confidential information unless otherwise properly disposed of by such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Revolving Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 3.08(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 3.11 or for its reduced rate of return pursuant to Section 3.17, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the ~~Note(s) held~~ Administrative Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Revolving Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Revolving Loan Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Revolving Credit Agreement (Hughes Supply Inc)

Appears in 1 contract

Samples: Credit Agreement (Amtrol Inc /Ri/)

Appears in 1 contract

Samples: Credit Agreement (Fairpoint Communications Inc)

Benefit of Agreement. (a) ~~This~~ modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), or increase the amount of the participant's participation over the amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Revolving Loan Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Loan Commitment or Loan shall be ~~binding -------------------- upon and inure~~ permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) consent to the ~~benefit of and be enforceable~~ assignment or transfer by the ~~respective successors~~ Borrowers of any of their rights and ~~assigns~~ obligations under this Agreement or (iii) release all or substantially all of the ~~parties hereto, provided that no Credit Party -------- may assign or transfer any of its rights or obligations hereunder without the prior written consent of~~ Collateral under all ~~the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any~~ of the ~~Notes to another financial institution,~~ Security Documents (except as expressly provided ~~that~~ in the Credit Documents) supporting the Loans in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under ~~this Agreement or~~ any of the ~~other~~ Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the ~~Borrower~~ Borrowers hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, any Lender (or any Lender together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Lenders) may (x) ~~any Lender may~~ assign all or a portion of its ~~Loans and/or Commitments~~ Revolving Loan Commitment (and related outstanding Obligations hereunder) to any Affiliate of such Lender which is at least 50% owned by such Lender or its ~~rights and obligations hereunder~~ parent company or to ~~another Lender, and~~ one or more Lenders or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $2,000,000 in the aggregate for the assigning Lender or assigning Lenders, of ~~its Loans and/or Commitments~~ such Revolving Loan Commitment (and ~~its rights and obligations hereunder~~ related outstanding Obligations hereunder) to one or more Eligible ~~Transferees (including one or more Lenders). Any assignment pursuant~~ Transferees, each of which assignees shall become a party to this ~~Section 12.4(b) need not be ratable~~ Agreement as ~~among the Tranche A Term Loans, the Tranche B Term Loans~~ a Lender by execution of an Assignment and ~~the Revolving Commitments of the assigning Lender except as~~ Assumption Agreement; provided ~~in the next sentence. No assignment pursuant to the immediately preceding sentence~~ that (i) at such time Annex I shall be deemed modified to reflect the ~~extent~~ Revolving Loan Commitments of such ~~assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment~~ new Lender and ~~Loans~~ of the ~~assigning Lender are so assigned or~~ existing Lenders, (ii) ~~shall be effective if~~ upon surrender of the ~~result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the~~ old Revolving ~~Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the~~ Notes, ~~any reference in this Agreement or~~ new Revolving Notes will be issued, at the ~~Notes~~ Borrowers' expense, to such ~~assigning Lender shall thereafter refer to such~~ new Lender and to the ~~respective assignee~~ assigning Lender, such new Revolving Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Revolving Loan Commitments, (iii) the consent of ~~their respective interests and~~ the ~~respective assignee~~ Agent shall ~~have, to the extent of~~ be required in connection with any such ~~assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each~~ assignment pursuant to 112 -106- clause (y) of this Section ~~12.4(b~~12.04(b) and (iv) the Agent shall ~~be effected by~~ receive at the ~~assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form~~ time of ~~Exhibit D (appropriately completed). In the event of any~~ each such ~~assignment to a Person not previously a Lender hereunder~~assignment, ~~either~~ from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $3,500; and provided, ~~and at~~ further, that such transfer or assignment will not be effective until recorded by the ~~time~~ Agent on the Register pursuant to Section 7.12. To the extent of any assignment pursuant to this Section ~~12.4(b~~12.04(b), ~~(i) Annex 1.1~~ the assigning Lender shall be ~~deemed~~ relieved of its obligations hereunder with respect to ~~be amended~~ its assigned Revolving Loan Commitment. At the time of each assignment pursuant to ~~reflect~~ this Section 12.04(b) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the ~~Commitment of~~ Code) for Federal income tax purposes, the respective assignee ~~(which~~ Lender shall ~~result in a direct reduction~~ provide to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender Borrowers and the ~~Borrower agree to execute such documents~~ Agent the appropriate Internal Revenue Service Forms (~~including without limitation amendments to~~ and, if applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). (c) Any Lender may at any time pledge or assign all or any portion of its rights under this Agreement and the other ~~Credit Documents) as shall be necessary~~ loan documents to ~~effect the foregoing. Nothing in this clause (b) shall prevent or prohibit~~ any ~~Lender from pledging its Notes or Loans to a~~ Federal Reserve Bank ~~in support~~ without notice to or consent of ~~borrowings made by~~ the Borrowers. No such pledge or assignment shall release the transferor Lender from ~~such Federal Reserve Bank~~its obligations hereunder. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Senior Secured Revolving Credit Agreement (Di Industries Inc)

Appears in 1 contract

Samples: Credit Agreement (Eye Care Centers of America Inc)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that~~ however, no Credit Party ~~--------~~ may assign -------- ------- or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of all of the ~~Lenders. Each Lender~~ Banks and, provided further, that no Bank may at assign or transfer all or any ~~time~~ portion of its ---------------- Revolving Loan Commitment and/or its outstanding Loans except as provided in Section 12.04(b) and, provided further, that although any Bank may grant ---------------- participations in ~~any of~~ its rights hereunder ~~or under any of the Notes to another financial institution~~in accordance with this Section, ~~provided that in the case of any~~ such ~~-------- participation,~~ Bank shall remain a "Bank" for all purposes hereunder and the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower constitute a "Bank" hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, ~~provided,~~ provided further, that no ~~-------- ------- Lender~~ Bank shall ~~transfer,~~ ---------------- grant ~~or assign~~ any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any ~~Loan~~ Loan, Note or ~~Note~~ Letter of Credit (unless such Letter of Credit is not extended beyond the Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any ~~post-~~post- default increase in interest rates), ) or reduce the principal amount thereof, or increase ~~such~~ the amount of the participant's ~~participating interest in any Commitment~~ participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment, or a mandatory prepayment,~~ Commitment shall not constitute a change in the terms of such participation, and that an increase in any ~~Commitment~~Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) ~~release~~ consent to the assignment or transfer by the Borrower of any ~~Guarantor from~~ of its rights and obligations under ~~its Guaranty except in accordance with the terms thereof,~~ this Agreement or (iii) release all or substantially all of the Collateral or under all of the Security Documents (ivexcept as expressly provided in the Credit Documents) ~~consent to~~ supporting the ~~assignment or transfer by any Credit Party~~ Loans hereunder in which such participant is participating. In the case of any ~~of its~~ such participation, the participant shall not have any rights ~~and obligations~~ under this Agreement or any of the other Credit ~~Document~~Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation. (b) Notwithstanding the foregoing, any Bank (or any Bank together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Banks) may (x) ~~any Lender may~~ assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or its outstanding Term Loans to its parent company and/or ~~Commitments and~~ any affiliate of such Bank which is at least 50% owned by such Bank or its ~~rights and obligations hereunder~~ parent company or to ~~another Lender, and~~ one or more Banks or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Bank or assigning Banks, of ~~its Loans and/or~~ such Revolving Loan Commitments and ~~its rights and obligations~~ outstanding principal amount of Term Loans hereunder to one or more Eligible ~~Transferees~~ Transferees, each of which assignees shall become a party to this Agreement as a Bank by execution of an Assignment and Assumption Agreement, provided that (~~including one or more Lenders~~i) at such time Annex I shall be deemed -------- modified to reflect the Commitments (and/or outstanding Term Loans, as the case may be) of such new Bank and of the existing Banks, (ii) upon surrender of the old Notes, new Notes will be issued, at the Borrower's expense, to such new Bank and to the assigning Bank, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments (and/or outstanding Term Loans, as the case may be)~~. Any~~ , (iii) the consent of the Agent shall be required in connection with any such assignment pursuant to clause (y) of this Section ~~12.4(b~~12.04(b) ~~need~~ (which consent shall not be ~~ratable as among~~ unreasonably withheld or delayed) and (iv) the ~~Tranche A Term Loans~~Agent shall receive at the time of each such assignment, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either from the assigning or assignee Bank, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $~~3,500~~3,500 and, ~~and at~~ provided -------- further, that such transfer or assignment will not be effective until recorded ------- by the ~~time~~ Agent on the Register pursuant to Section 7.13 hereof. To the extent of any assignment pursuant to this Section ~~12.4(b~~12.04(b), ~~(i) Annex 1.1~~ the assigning Bank shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned commitments. At the time of each assignment pursuant to this Section 12.04(b) to a Person which is not already a Bank hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Bank shall provide to the Borrower and the Agent the appropriate Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Bank's Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 12.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning Bank prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee~~ assignment). (~~which shall result in a direct reduction to the Commitment of the assigning Lender~~c) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any ~~Lender~~ Bank from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such ~~Lender~~ Bank from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Wesley Jessen Visioncare Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided~~ however, that no Credit Party ~~--------~~ may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of all of the ~~Lenders. Each Lender~~ Banks; and provided further, that although any Bank may ~~at any time~~ grant participations in its rights hereunder, such Bank shall remain a "Bank" for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights~~ Commitments or Loans hereunder ~~or under any of the Notes to another financial institution,~~ except as provided ~~that~~ in ~~the case of any such -------- participation,~~ Section 13.04(b)) and the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) constitute a "Bank" hereunder; and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, provided further, that no ~~-------- ------- Lender~~ Bank shall ~~transfer,~~ transfer or grant ~~or assign~~ any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan ~~or Note~~ Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any post-default increase in interest rates), ) or reduce the principal amount thereof, or increase the Commitments in which such ~~participant's~~ participant is participating ~~interest in any Commitment~~ over the amount thereof then in effect (it being understood that a waiver of any ~~Default~~ conditions precedent, covenants, Defaults or ~~Event~~ Events of Default or of a mandatory reduction in the Total ~~Commitment,~~ Commitment or of a mandatory ~~prepayment,~~ prepayment shall not constitute ~~a change~~ an increase of the Commitment in which any participant is participating, that an increase in the ~~terms~~ available portion of any ~~Commitment~~Commitment of any Bank shall not constitute an increase in the Commitment in which any participant is participating, and that an increase in any Commitment shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii~~) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv~~) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the Collateral under all of the Security Documents (in each case except as expressly provided in the Credit Documents), or any Guarantor or Guaranty (in each case except as expressly provided in the relevant Credit Documents) supporting the Loans hereunder in which such participant is participating. In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit ~~Document~~Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by the Borrowers hereunder shall be determined as if such Bank had not sold such participation. (b) Notwithstanding the foregoing, any Bank (or any Bank together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Banks) may (x) ~~any Lender may~~ assign all or a portion of its Commitments (and related outstanding Obligations hereunder) and/or its outstanding Term Loans to (i) its parent company and/or ~~Commitments~~ any Lending Affiliate of such Bank or to one or more Banks or (ii) in the case of any Bank that is a fund that invests in bank loans, any other fund that invests in bank loans and ~~its rights and obligations hereunder to another Lender, and~~ is managed by the same investment advisor of a Bank or an Affiliate of such investment advisor or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $5,000,000 (or the Dollar Equivalent thereof) in the aggregate for the assigning Bank or assigning Banks, of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or $1,000,000 (or the Dollar Equivalent thereof) in the aggregate of such assigning Bank or assigning Banks of its Term Loan Commitment and/or outstanding Term Loans ~~and/or Commitments and its rights and obligations hereunder~~ to one or more Eligible Transferees (~~including one~~ treating (A) any fund that invests in bank loans and (B) any other fund that invests in bank loans and is managed by the same investment advisor as such fund or ~~more Lenders~~by an Affiliate of such investment advisor, as a single Eligible Transferee)~~. Any assignment pursuant~~ , each of which assignees shall become a party to this ~~Section 12.4(b) need not be ratable~~ Agreement as ~~among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments~~ a Bank by execution of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment and Assumption Agreement substantially in the form of Exhibit D J, provided that (~~appropriately completed). In~~ i) at such time Schedule I shall be deemed modified to reflect the ~~event~~ Commitment and/or outstanding Term Loans, as the case may be, of such new Bank and of the existing Banks, (ii) if requested by the assigning Bank or the assignee Bank, upon surrender of the old Notes (with the old Notes of the assigning Bank to be marked "Canceled") (or the furnishing of a standard indemnity letter from the respective assigning Bank in respect of any lost Notes reasonably acceptable to Holdings), new Notes will be issued, at the Borrowers' expense, to such new Bank and to the assigning Bank, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments and/or outstanding Term Loans, as the case may be, (iii) the consent of the Administrative Agent and, so long as no Event of Default exists, the US Borrower shall be required in connection with any assignment to ~~a Person~~ an Eligible Transferee pursuant to clause (y) of this Section 13.04(b) (which consent, in each case, shall not ~~previously a Lender hereunder~~be unreasonably withheld or delayed and shall not be required for Banks that have been approved by the US Borrower in writing in connection with the primary syndication which take by assignment on or prior to July 31, ~~either~~ 2001), (iv) the consent of the Issuing Bank shall be required in connection with any assignment of Revolving Loan Commitments pursuant to clause (y) of this Section 13.04(b) (which consent shall not be unreasonably withheld or delayed) and (v) the Administrative Agent shall receive at the time of each assignment, from the assigning or assignee Bank, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $~~3,500~~3,500 and, ~~and at~~ provided further, that such transfer or assignment will not be effective until recorded by the ~~time~~ Administrative Agent on the Register pursuant to Section 13.14. To the extent of any assignment pursuant to this Section ~~12.4(b~~13.04(b), ~~(i) Annex 1.1~~ the assigning Bank shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Commitments and/or outstanding Term Loans. At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Bank hereunder, the respective assignee Bank shall provide to the US Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Bank's Revolving Loan Commitments and outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, due to circumstances existing at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning Bank prior to such assignment, then the Borrowers shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrowers shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee (which shall result in a direct reduction~~ assignment). Notwithstanding anything to the ~~Commitment~~ contrary contained above, at any time after the termination of the ~~assigning Lender) and~~ Total Revolving Loan Commitment, if any Revolving Loans or Letters of Credit remain outstanding, assignments may be made as provided above, except that the respective assignment shall be of a portion of the ~~other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to~~ outstanding Revolving Loans of the respective ~~assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents~~ RC Bank. (~~including without limitation amendments to this Agreement and the other Credit Documents~~c) ~~as shall be necessary to effect the foregoing.~~ Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any ~~Lender~~ Bank or BTCo from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such ~~Lender~~ Bank from such Federal Reserve ~~Bank.~~ Bank and, with the consent of the Administrative Agent, any Bank which is a fund may pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its trustee. No pledge pursuant to this clause (c) ~~Notwithstanding~~ shall release the transferor Bank from any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlobligations hereunder. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Aearo Corp)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that~~ however, no Credit Party ~~--------~~ may assign -------- ------- or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of all of the ~~Lenders. Each Lender~~ Banks and, provided further, that, although any Bank may ~~at any time~~ transfer, assign or grant ---------------- participations in its rights hereunder, such Bank shall remain a "Bank" for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights~~ Commitments hereunder except as provided in Section 12.04(b)) and the transferee, assignee or ~~under any of~~ participant, as the ~~Notes to another financial institution~~case may be, shall not constitute a "Bank" hereunder and, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no ~~-------- ------- Lender~~ Bank shall ~~transfer,~~ transfer or grant ~~or assign~~ any ---------------- participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan ~~or Note~~ Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any post-default increase in interest rates), ) or reduce the principal amount thereof, or increase ~~such~~ the amount of the participant's ~~participating interest in any Commitment~~ participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment, or a mandatory prepayment,~~ Commitment shall not constitute a change in the terms of such participation, and that an increase in any ~~Commitment~~Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) ~~release~~ consent to the assignment or transfer by the Borrower of any ~~Guarantor from~~ of its rights and obligations under ~~its Guaranty except in accordance with the terms thereof,~~ this Agreement or (iii) release all or substantially all of the Collateral or under all of the Security Documents (ivexcept as expressly provided in the Credit Documents) ~~consent to~~ supporting the ~~assignment or transfer by any Credit Party~~ Loans hereunder in which such participant is participating. In the case of any ~~of its~~ such participation, the participant shall not have any rights ~~and obligations~~ under this Agreement or any of the other Credit ~~Document~~Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation. (b) Notwithstanding the foregoing, any Bank (or any Bank together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Banks) may (x) ~~any Lender may~~ assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or its outstanding Term Loans (i) to its parent company and/or ~~Commitments~~ any affiliate of such Bank which is at least 50% owned by such Bank or its parent company or to one or more Banks or (ii) in the case of any Bank that is a fund that invests in loans, any other fund that invests in bank loans and ~~its rights and obligations hereunder to another Lender, and~~ is advised by the same investment advisor of such Bank or by an Affiliate of such investment advisor or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Bank or assigning Banks, of ~~its~~ such Revolving Loan Commitments and/or outstanding principal amount of Term Loans ~~and/or Commitments and its rights and obligations~~ hereunder to one or more Eligible Transferees (~~including one~~ treating any fund that invests in loans and any other fund that invests in loans and is advised by the same investment advisor of such fund or ~~more Lenders~~by an Affiliate of such investment advisor as a single Eligible Transferee)~~. Any~~ , each of which assignees shall become a party to this Agreement as a Bank by execution of an Assignment and Assumption Agreement, provided that (i) at such time Annex I shall be deemed modified to reflect the -------- Commitments (and/or outstanding Term Loans, as the case may be) of such new Bank and of the existing Banks, (ii) upon surrender of the old Notes, new Notes will be issued, at the Borrower's expense, to such new Bank and to the assigning Bank, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments (and/or outstanding Term Loans, as the case may be), (iii) the consent of the Agent shall be required in connection with any such assignment pursuant to clause (y) of this Section ~~12.4(b~~12.04(b) ~~need~~ (which consent shall not be ~~ratable as among~~ unreasonably withheld or delayed), (iv) the ~~Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments~~ consent of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans each Letter of ~~the assigning Lender are so assigned or (ii)~~ Credit Issuer shall be ~~effective if the result thereof is that any Lender has a different percentage interest~~ required in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of connection with any such assignment of Revolving Loan Commitments pursuant to ~~a Person~~ clause (y) of this Section 12.04(b) (which consent shall not ~~previously a Lender hereunder~~be unreasonably withheld), ~~either~~ and (v) the Agent shall receive at the time of each such assignment, from the assigning or assignee Bank, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $~~3,500~~3,500 and, ~~and at~~ provided further, that such ---------------- transfer or assignment will not be effective until recorded by the ~~time~~ Agent on the Register pursuant to Section 7.12 hereof. To the extent of any assignment pursuant to this Section ~~12.4(b~~12.04(b), ~~(i) Annex 1.1~~ the assigning Bank shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Commitments. At the time of each assignment pursuant to this Section 12.04(b) to a Person which is not already a Bank hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Bank shall provide to the Borrower and the Agent the appropriate Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Bank's Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 12.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning Bank prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee~~ assignment). (~~which shall result in a direct reduction to the Commitment of the assigning Lender~~c) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any ~~Lender~~ Bank from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such ~~Lender~~ Bank from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Cambridge Industries Inc /De)

Appears in 1 contract

Samples: Credit Agreement (General Maritime Corp / MI)

Appears in 1 contract

Samples: Credit Agreement (About, Inc.)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. ~~Each Lender may at any time grant participations~~ Nothing in ~~any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under~~ this Agreement express or implied is intended or shall be construed to give any of Person other than the ~~other Credit Documents (the participant's rights against such Lender~~ Parties hereto any legal or equitable right, remedy or claim under or in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any ~~other Credit Document except~~ covenant, condition or provision herein contained, and all such covenants conditions and provisions are and shall be held to be for the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver sole and exclusive benefit of the ~~application of any prepayment or the method of any application of any prepayment to~~parties hereto and their respective successors and assigns; provided however, CoBank, ACB, the ~~amortization~~ Gateway Recovery Trust and The Prudential Insurance Company of America shall each be deemed a third party beneficiary of the ~~Term Loans shall not constitute a waiver~~ provisions of ~~any Scheduled Repayment or an extension of the final maturity date~~Section 3.1(e) and Section 3.10(f), ~~or reduce the rate or extend the time~~ and neither of ~~payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates)~~such Sections nor this sentence shall be amended, modified, or ~~reduce~~ waived without the ~~principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver~~ prior written consent of ~~any Default or Event~~ each of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Documentthem. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~i) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder to another Lender, and~~ under this Agreement (~~y) any Lender may assign~~ including all or a portion of any of its ~~Loans and/or~~ Commitments and ~~its~~ the Loans at the time owing to it and the Notes held by it) to any Eligible Assignee; provided, however, that other than in the case of any assignment of the Tranche B Term Loans, (A) the Agent and the Borrower must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed, and provided that the consent of the Borrower shall not be required if an Event of Default has occurred and is continuing) unless such assignment is to an Affiliate of the assigning Lender, and (B) the amount of the Commitments, in the case of assignment of the Commitments, or Loans, in the case of assignment of Loans, of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent), shall not be less than $5,000,000. The parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $3,500. The Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations ~~hereunder~~ of a Lender under this Agreement. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments or amount of its retained Loans. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (ii) The Notes representing the Tranche B Term Loans are to be issued and are assignable in whole or in part as registered securities on the books and records of the Borrower without coupons in denominations of at least $1,500,000, except as may be necessary to reflect any principal amount less than $1,500,000, and may be exchanged for one or more ~~Eligible Transferees (including one or more Lenders)~~Notes of any authorized denomination and like class and aggregate outstanding principal amount. ~~Any assignment pursuant~~ Upon transfer of any Tranche B Term Note, a pro rata portion of the transferring Tranche B Term Lender's Tranche B Term Loan Commitment shall be transferred to ~~this Section 12.4(b) need not be ratable as among~~ the transferee of such Tranche A B Term ~~Loans,~~ Loan Note. The Borrower shall keep at its principal executive office a register in which the Borrower shall record the registrations of the Notes representing the Tranche B Term Loans and the ~~Revolving Commitments~~ names and addresses of the ~~assigning Lender~~ holder thereof from time to time. Upon surrender of a Note representing a Tranche B Term Loan to the Borrower for registration of assignment endorsed or accompanied by a written instrument of assignment duly executed by the registered holder or its attorney duly authorized in writing and accompanied by the address for notices, the Borrower shall at its expense (except as provided ~~in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than~~ below), execute and deliver one or more ~~Lenders hereunder~~replacement Notes of like tenor and class and of a like aggregate amount, be registered in ~~an aggregate amount less than $5,000,000 unless~~ the ~~entire Commitment and Loans~~ name of such holder or its assignees or assignees. Each new Note will bear interest from the date on which interest was last paid on the surrendered Note or the date of issue of the ~~assigning Lender are so assigned~~ surrendered Note if no interest has yet been paid thereon. The Borrower may require payment of a sum sufficient to cover any stamp tax or ~~(ii) shall be effective if the result thereof is that any Lender has a different percentage interest~~ governmental charge imposed in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event respect of any such ~~assignment to~~ assignment. Upon receipt of written notice from a ~~Person not previously~~ holder of a ~~Lender hereunder~~Note representing a Tranche B Term Loan of the loss, ~~either~~ theft, destruction or mutilation of such Note and, in the ~~assigning~~ case of any such loss, theft or ~~the assignee Lender shall pay~~ destruction, upon receipt of an indemnification agreement of such holder satisfactory to the ~~Agent a nonrefundable assignment fee of $3,500~~Borrower, ~~and at~~ or in the ~~time~~ case of any ~~assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment~~ such mutilation upon surrender and cancellation of ~~the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any~~ such ~~assignment occurs after the Initial Borrowing Date~~Note, the Borrower will make and deliver a new Note, at its expense, of like tenor and class, in lieu of the lost, stolen, destroyed or mutilated Note, and each new Note will bear interest from the date on which interest was last paid on such lost, stolen, destroyed or mutilated Note or if no interest has yet been paid thereon, the date of issue ~~new Notes~~ of such lost, stolen, destroyed or mutilated Note. Notwithstanding anything in the foregoing to the ~~respective assignee and to the assigning~~ contrary, no Tranche B Term Loan Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent may assign any Note representing a Tranche B Term Loan or ~~prohibit~~ any ~~Lender from pledging its Notes or Loans~~ interest therein to a ~~Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment~~ competitor of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any StateBorrower. (d) Each Lender ~~initially party~~ may, without the consent of the Borrower or the Agent, sell participations to one or more banks or other entities in all or a portion of its rights and obligations under this Agreement ~~hereby represents~~(including all or a portion of its Commitments in the Loans owing to it and the Notes held by it), provided, however, that (other than in the case of a Tranche B Term Lender) (i) no Lender may sell a participation in its aggregate Commitments or Loans (after giving effect to any permitted assignment hereof) in an amount in excess of fifty percent (50%) of such aggregate Commitments or Loans, and ~~each Person that became~~ the selling Lender must retain after the sale of such participation a ~~Lender pursuant~~ minimum aggregate amount of Commitments or Loans, as the case may be, of $10,000,000, provided, however, sales of participations to an ~~assignment permitted by~~ Affiliate of such Lender shall not be included in such calculation; provided, however, no such maximum amount shall be applicable to any such participation sold at any time there exists an Event of Default hereunder, (ii) such Lender's obligations under this ~~Section 12 will~~Agreement shall remain unchanged, ~~upon~~ (iii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iv) the participating bank or other entity shall not be entitled to the benefit (except through its ~~becoming party to~~ selling Lender) of the cost protection provisions contained in Article 3 of this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b)v) the Borrower and the Agent and other Lenders shall continue to deal solely and directly with each Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents, ~~the disposition of any promissory notes or other evidences of or interests in Indebtedness held by~~ and such Lender shall ~~at all times be within its exclusive control~~retain the sole right to enforce the obligations of the Borrower relating to the Loans and to approve any amendment, modification or waiver of any provisions of this Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to the Borrower of the name of such participant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to the Borrower or the Subsidiaries furnished to such Lender by or on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. The Register shall be available for inspection by the Borrower or any ~~Lender at~~ Subsidiary. With respect to any ~~reasonable time~~ disclosure of confidential, non- public, proprietary information, such proposed assignee or participant shall agree to use the information only for the purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the confidential nature of the information and shall agree to use the information and to hold the information as confidential all in the same manner described above, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to the Borrower and the Agent unless otherwise prohibited by the subpoena, order or law), and (iii) upon the request or demand of any regulatory agency or authority with proper jurisdiction. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from ~~time~~ any Lender, the Agent or the Borrower relating to ~~time upon reasonable prior notice~~such confidential information unless otherwise properly disposed of by such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) Notwithstanding anything to the contrary set forth in this Section 10.5, on and as of the Closing Date, subject to the conditions set forth in Section 4.1 hereof, each of the Departing Lenders and the Lenders hereunder shall sell, assign and transfer, or purchase and assume, as the case may be, such interests in the Revolving Loans, Tranche A Term Loans, Revolving Commitments, and Tranche A Term Loan Commitments, in each case, outstanding immediately prior to the Closing Date (or as increased hereunder), as shall be necessary so that, after giving effect to all such assignments and purchases, the Revolving Commitments and the Tranche A Term Loan Commitments will be held by the Lenders hereunder as set forth, respectively, on the signature pages hereto. The assignments and purchases provided for in this Section 10.5(g) shall be without recourse, warranty or representation, except that each Departing Lender assigning any interest shall be deemed to have represented that it is the legal and beneficial owner of the interests assigned by it and that such interests are free and clear of any ~~United States federal income taxes~~ adverse claim. The purchase price for each such assignment and purchase shall equal the principal amount of the Loans purchased and shall be payable to the Agent for distribution to the Lenders and Departing Lenders, respectively. Concurrently with the effectiveness of the assignments and purchases provided for above, the Departing Lenders shall cease to be parties to the Existing Credit Agreement and shall be released from all further obligations thereunder; provided, however, that the Departing Lenders shall continue to be entitled to the benefits of Sections 3.11(b), 3.14, 3.15, 3.19 and 10.4 of the Existing Loan Agreement as in ~~respect of payment of any interest due~~ effect immediately prior to the Closing Date. Promptly after the Closing Date, all Departing Lenders shall return the Notes issued to such ~~Non-U.S. Lender~~ Departing Lenders under ~~this~~ the Existing Credit Agreement ~~or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through~~ to the Agent~~), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes~~.

Appears in 1 contract

Samples: Credit Agreement (Gold Kist Inc)

Appears in 1 contract

Samples: Debt Agreement (Cooper-Standard Holdings Inc.)

Appears in 1 contract

Samples: Credit Agreement (Intermet Corp)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that no Credit Party~~ however, the Borrower may not -------- ~~may~~ ------- assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of the Banks and, provided further, that, although any Bank may transfer, assign or grant ---------------- participations -95- in its rights hereunder, such Bank shall remain a "Bank" for all ~~the Lenders. Each Lender~~ purposes hereunder (and may at not transfer or assign all or any ~~time grant participations in any~~ portion of its ~~rights~~ Commitments hereunder except as provided in Section 13.04(b)) and the transferee, assignee or ~~under any of~~ participant, as the ~~Notes to another financial institution~~case may be, shall not constitute a "Bank" hereunder and, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no ~~-------- ------- Lender~~ Bank shall ~~transfer,~~ transfer or grant ~~or assign~~ any participation under ---------------- which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any ~~Loan~~ Loan, Note or ~~Note~~ Letter of Credit (unless such Letter of Credit is not extended beyond the A/RF Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any post-default increase in interest rates), ) or reduce the principal amount thereof, or increase ~~such~~ the amount of the participant's ~~participating interest in any Commitment~~ participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment, or a mandatory prepayment,~~ Commitments shall not constitute a change in the terms of such participation, and that an increase in any ~~Commitment~~Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (ii) ~~release~~ consent to the assignment or transfer by the Borrower of any ~~Guarantor from~~ of its rights and obligations under ~~its Guaranty except in accordance with the terms thereof,~~ this Agreement or (iii) release all or substantially all of the Collateral or under all of the Security Documents (ivexcept as expressly provided in the Credit Documents) ~~consent to~~ supporting the ~~assignment or transfer by any Credit Party~~ Loans hereunder in which such participant is participating. In the case of any ~~of its~~ such participation, the participant shall not have any rights ~~and obligations~~ under this Agreement or any of the other Credit ~~Document~~Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation. (b) Notwithstanding the foregoing, any Bank (or any Bank together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Banks) may (x) ~~any Lender may~~ assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or its outstanding Term Loans ~~and/or Commitments~~ (or, if not theretofore terminated, Term Loan Commitment) to (i) one or more Banks, (ii) any Related Fund that is an Eligible Transferee or (iii) its parent company, or any Affiliate of such Bank which is an Eligible Transferee and which is at least 50% owned by such Bank or its ~~rights and obligations hereunder to another Lender, and~~ parent company or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $1,000,000 in the aggregate for the assigning Bank or assigning Banks, of such Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or its outstanding Term Loans ~~and/or Commitments and its rights and obligations hereunder~~ (or, if not theretofore terminated, Term Loan Commitment) to one or more Eligible Transferees (~~including one~~ treating any fund that invests in commercial loans and any other fund that invests in commercial loans and is managed by the same investment advisor of such fund or ~~more Lenders~~by an Affiliate of such investment advisor as a single assignee)~~. Any~~ , each of which assignees shall become a party to this Agreement as a Bank by execution of an Assignment and Assumption Agreement, provided that (i) at such time Schedule I shall be deemed modified to -------- reflect the Commitments (and/or outstanding Loans, as the case may be) of such new Bank and of the existing Banks, (ii) upon surrender of the old Notes (or, upon such assigning Bank's indemnifying the Borrower for any lost Note pursuant to a customary indemnification agreement), new Notes will be issued, at the Borrower's expense, to such new Bank and to the assigning Bank upon the request of such new Bank or assigning Bank, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments (and/or outstanding Loans, as the case may be), (iii) the consent (which shall not be unreasonably withheld or delayed) of each Agent shall be required in connection with any such assignment pursuant to ~~this Section 12.4(b~~clause (y) ~~need~~ above, (iv) so long as no Default or Event of Default exists, the consent of the Borrower shall be required in connection with any assignment to an Eligible Transferee pursuant to clause (y) above (which consent shall not be ~~ratable as among~~ unreasonably withheld or delayed), and (v) the ~~Tranche A Term Loans~~Administrative Agent shall receive at the time of each such assignment (other than in connection with an assignment by a Bank to an Affiliate of such Bank or to a Related Fund of any Bank), from the assigning or assignee Bank, the ~~Tranche B Term Loans and the Revolving Commitments~~ payment of ~~the assigning Lender except as provided~~ a non-refundable assignment fee of $1,500 or in the ~~next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents~~ case of an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof assignee which is ~~that any Lender has~~ not a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein)Bank, the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form payment of ~~Exhibit D (appropriately completed). In the event of any such assignment to~~ a ~~Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable~~ nontransferable assignment fee of $~~3,500~~3,000 (except that in the case of assignments on the same day by a Bank to more than one fund managed or advised by the same investment advisor or by an Affiliate of such investment advisor (which funds are not then Banks hereunder), ~~and at~~ only a single $3,000 assignment fee shall be payable for all such assignments by such Bank to such funds) and, provided -------- further, that such transfer or assignment will not be effective until recorded ------- by the ~~time~~ Administrative Agent on the Register pursuant to Section 13.16. To the extent of any assignment pursuant to this Section ~~12.4(b~~13.04(b), ~~(i) Annex 1.1~~ the assigning Bank shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Commitments. At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Bank hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Bank shall provide to the Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Bank's Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.06 or 4.04 from those being charged by the respective assigning Bank prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay or reimburse such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee~~ assignment). (~~which shall result~~ c) Notwithstanding any other provision set forth in ~~a direct reduction to~~ this Agreement, any Bank may, without the ~~Commitment~~ consent of the ~~assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date~~Borrower, the ~~Borrower will issue new~~ Administrative Agent or the Sole Lead Arranger, pledge its Loans and Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans hereunder to a Federal Reserve Bank in support of borrowings made by such ~~Lender~~ Bank from such Federal Reserve ~~Bank. (c) Notwithstanding~~ Bank or to any trustee for, or any other representative of, holders of obligations owed or securities issued, by such Bank, as security for such obligations or securities; provided that any foreclosure or similar action by -------- such trustee or representative shall be subject to the provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State13.04 concerning assignments. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Extended Stay America Inc)

Appears in 1 contract

Samples: Real Estate Term Credit Agreement (Hughes Supply Inc)

Appears in 1 contract

Samples: 364 Day Credit Agreement (Omnicom Group Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders~~. Each~~ , except as permitted by ‎Section 6.01. (b) Any Lender may make, carry or transfer Loans or Letter of Credit Liabilities at ~~any~~ the time ~~grant participations in~~ owing to it at, to or for the account of, any of its ~~rights hereunder~~ branch offices or ~~under any~~ the offices of ~~the Notes to another financial institution~~an Affiliate of such Lender, provided that doing so shall not cause the Borrower to incur any additional costs hereunder at the time of such transfer. (c) Any Lender may assign its rights and delegate its obligations under this Agreement and further may sell participations in all or any part of any Loan or Loans made by it or its Commitment or Letter of Credit Liabilities at the time owing to it or any other interest herein to another bank or other entity; provided that (i) in the case of an assignment, such Lender shall (A) give to the Borrower and the Administrative Agent prior notice thereof (and the Administrative Agent shall promptly notify each Issuing Lender thereof), and, in the case of any assignment, the Borrower, the Issuing Lenders and the Administrative Agent shall, except as set forth in the last sentence of this ‎Section 9.01(c), have consented thereto (each such ~~--------~~ consent not to be unreasonably withheld or delayed) and (B) comply with ‎Section 9.01(e) hereof and thereupon, the assignee (the “Purchasing Lender”) shall have, to the extent of such assignment (unless otherwise provided thereby), the rights and benefits described in ‎Section 9.01(e) hereof, and (ii) in the case of a participation, except as set forth below, (A) the participant shall not have any rights under this Agreement or any ~~of the~~ other ~~Credit Documents~~ document delivered in connection herewith (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto); provided that a participation agreement may provide that a Lender will not agree to any modification, amendment or waiver of any provision in this Agreement described in subclause (A), (C), or (E) of Section 9.05(a)(ii) without the consent of the participant and (B) all amounts payable by the Borrower ~~hereunder~~ under Sections ‎2.09(e) and ‎2.09(h) hereof shall be determined as if ~~such~~ the Lender had not sold such participation. Except with respect to interest rate, ~~except that the participant shall be entitled~~ principal amount of any Loan, fees, scheduled dates for payment of principal or interest or fees, scheduled termination of commitments and commitment amounts, a Lender will not in any such participation agreement restrict its ability to ~~the benefits of Sections 1.10~~make any modification, ~~1.11, 2.6 and 4.4 of~~ amendment or waiver to this Agreement to without the ~~extent that~~ consent of the participant. Any Lender may furnish any information concerning the Borrower in possession of such Lender ~~would be entitled~~ from time to time to Affiliates of such ~~benefits if the participation had not been entered into or sold, and~~Lender and to assignees and participants (including prospective assignees and participants), provided, ~~further~~however, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or extend~~ except when such information is furnished to an Affiliate, the ~~final scheduled maturity~~ furnishing Lender shall give the Borrower prior notice of any ~~Loan or Note in which such participant is participating (it being understood that any waiver~~ furnishing of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any postnon-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment)public information, (ii) ~~release any Guarantor from its obligations under its Guaranty except in accordance with~~ the recipient shall agree to the terms ~~thereof,~~ of this ‎Section 9.01 hereof and (iii) ~~release~~ the furnishing of such information (and the nature, manner and extent thereof) by any Lender to its Affiliates and such assignees and participants shall be further governed by the relevant agreement, assignment or participation agreement relating to such arrangement, assignment or participation, as the case may be. Notwithstanding anything to the contrary in the foregoing, (A) any Lender may, without the consent of the Borrower or the Administrative Agent, assign any of its rights and interests in Loans hereunder to (x) a federal reserve bank, (y) another Lender (other than a Defaulting Lender) or (z) any Affiliate of such Lender; (B) no consent of the Borrower to an assignment shall be required if at the time an Event of Default exists; (C) the Borrower shall be deemed to have consented to any assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within fifteen Business Days after having received notice thereof, and (D) no assignment may be made to (x) the Borrower or any of its Affiliates or (y) to a natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person). (d) Except pursuant to an assignment permitted by this Agreement but only to the extent set forth in such assignment, no Lender shall, as between the Borrower and that Lender, be relieved of any of its obligations hereunder as a result of any sale, transfer or negotiation of, or granting of participations in, all or ~~substantially all~~ any part of the ~~Collateral~~ Loans or Commitment of or Letter of Credit Liabilities at the time owing to that Lender or other obligations owed to such Lender. (ive) ~~consent~~ Subject to ~~the assignment~~ ‎Section 9.01(c), any Lender may at any time assign to one or ~~transfer by any Credit Party~~ more Lenders or other financial institutions all, or a proportionate part of ~~any~~ all, of its rights and obligations under this ~~Agreement~~ Agreement, provided that (i) the minimum amount of such assignment shall be equivalent to (A) if the Purchasing Lender is not a Lender hereunder, $10,000,000 or ~~any other Credit Document. (b) Notwithstanding~~ the ~~foregoing, with the consent~~ aggregate amount of the ~~Agent~~ assigning Lender’s Commitment, whichever is less and (B) if the ~~Borrower~~ Purchasing Lender is a Lender hereunder, $5,000,000 or the aggregate amount of the assigning Lender’s Commitment, whichever is less and (~~each~~ ii) after giving effect to such assignment, the Commitment of ~~which consents~~ the assigning Lender is equivalent to not less than $10,000,000, unless such assigning Lender shall ~~not be unreasonably withheld), (x) any Lender may assign~~ have assigned all ~~or a portion~~ of ~~its Loans and/or Commitments and~~ its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders)under this Agreement. Any assignment made pursuant to ~~this Section 12.4(b~~‎Section 9.01(c) ~~need not~~ hereof shall be ~~ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment~~ made pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment ~~Agreement~~ and Assumption Agreement, substantially in the form of Exhibit D G annexed hereto, executed by the Purchasing Lender, the transferor Lender, the Borrower and the Administrative Agent. Upon (~~appropriately completed). In the event~~ i) such execution of ~~any~~ such ~~assignment to a Person not previously a Lender hereunder~~Assignment and Assumption Agreement, ~~either the assigning or the assignee Lender shall pay~~ (ii) delivery of an executed copy thereof to the Borrower, (iii) payment by such Purchasing Lender to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Purchasing Lender, and (iv) payment by such Purchasing Lender or transferor Lender (as they shall mutually agree) to the Administrative Agent of a ~~nonrefundable assignment~~ non-refundable fee of $~~3,500~~3,500 to cover administrative and other expenses which may be incurred in connection with such assignment, such Purchasing Lender shall for all purposes be a Lender party to this Agreement and shall have the rights (including without limitation the benefits of Sections 2.09 and 2.10) and obligations of a Lender under this Agreement to the same extent as if it were an original party hereto and thereto with the pro rata Share of the applicable Commitment set forth in such Assignment and Assumption Agreement, and at no further consent or action by the ~~time of any assignment pursuant to this Section 12.4(b)~~Borrower, ~~(i) Annex 1.1~~ the Lenders or the Administrative Agent shall be required. Such Assignment and Assumption Agreement shall be deemed to ~~be amended~~ amend this Agreement to the extent, and only to the extent, necessary to reflect the ~~Commitment~~ addition of ~~the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any~~ such ~~assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each~~ Purchasing Lender and the ~~Borrower agree to execute~~ resulting adjustment of pro rata Shares arising from the purchase by such ~~documents (including without limitation amendments to~~ Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender under this Agreement and the ~~other Credit Documents)~~ Loans. Upon the consummation of any transfer to a Purchasing Lender pursuant to this paragraph ‎(e), the transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so that, if requested, a replacement Note is issued to such transferor Lender and a new Note or, as ~~shall be necessary~~ appropriate, a replacement Note, if requested, issued to ~~effect~~ such Purchasing Lender, in each case in principal amounts reflecting their pro rata Shares or, as appropriate, their outstanding Loans, as adjusted pursuant to such Assignment and Assumption Agreement. Notwithstanding anything to the ~~foregoing. Nothing~~ contrary contained in this ~~clause (b) shall prevent or prohibit~~ Agreement, neither the Borrower nor any of its Affiliates nor any Defaulting Lender ~~from pledging its Notes or Loans to~~ may be a ~~Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank~~Purchasing Lender. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (df) Each Lender ~~initially party to~~ that sells a participation shall, acting solely for this purpose as a nonfiduciary 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 this Agreement ~~hereby represents~~(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, ~~and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will~~loans, ~~upon~~ letters of credit or its ~~becoming party to~~ other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, ~~represent that it is a commercial lender~~loan, ~~other financial institution~~ letter of credit or other ~~"accredited" investor (as defined~~ obligation is in ~~SEC Regulation D~~registered form under Section 5f.103-1(c) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeUnited States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive, in the absence of manifest~~ conclusive absent clearly demonstrable error, and ~~the Borrower, the Agent and the Lenders may~~ such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein~~ such participation for all purposes of this ~~Agreement,~~ Agreement notwithstanding any notice to the contrary~~. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Textron Inc)

Appears in 1 contract

Samples: Credit Agreement (Genco Shipping & Trading LTD)

Benefit of Agreement. ~~(a)~~ This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided~~ however, that (i) no ~~Credit~~ Loan Party ~~--------~~ may ~~assign~~ assign, transfer, hypothecate or ~~transfer~~ otherwise convey any of its ~~rights~~ rights, obligations, benefits or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ the Required Lenders~~. Each~~ , and (ii) each Lender may ~~at any time~~ transfer, assign or grant participations in ~~any of~~ its rights hereunder pursuant to Section 12.20 hereof; provided that such Lender shall not transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled maturity of any Loan or Note in which such participant is participating, or reduce the rate or extend the time of payment of interest thereon or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as 19-22911-rdd Doc 134-1 Filed 07/19/19 Entered 07/19/19 13:46:56 Exhibit A Pg 36 of 66 a result thereof), (y) consent to the assignment or transfer by any Loan Party of any of their rights and obligations under this Agreement or (z) release all or substantially all of the ~~Notes to another financial institution,~~ Collateral under all of the Security Documents (except as expressly provided ~~that~~ in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's ’s rights against ~~such~~ any Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Secured Debtor in Possession Credit Agreement

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided~~ however, that no Credit Party ~~--------~~ may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of all of the Lenders~~. Each~~ ; and provided further, that although any Lender may ~~at any time~~ grant participations in its rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments or Loans hereunder except as provided in Section 14.04(b)) and the participant shall not constitute a "Lender" hereunder; and provided further, that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof, or increase the Commitments in which such participant is participating over the amount thereof then in effect (it being understood that a waiver of any conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Commitment or of a mandatory prepayment shall not constitute an increase of the Commitment in which any participant is participating, that an increase in the available portion of any Commitment of any Lender shall not constitute an increase in the Commitment in which any participant is participating, and that an increase in any Commitment shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i) so long as such amendment or modification is not intended to reduce such rate of interest of such fees), (ii) consent to the assignment or transfer by any Credit Party of any of its rights ~~hereunder~~ and obligations under this Agreement or ~~under any~~ (iii) release all or substantially all of the ~~Notes to another financial institution~~Collateral under all of the Security Documents (in each case except as expressly provided in the Credit Documents), or any Guarantor or Guaranty (in each case except as expressly provided ~~that~~ in the relevant Credit Documents) supporting the Loans hereunder in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, any Lender (or any Lender together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Lenders) may (x) ~~any Lender may~~ assign all or a portion of its Commitments (and related outstanding Obligations hereunder) and/or its outstanding Term Loans to (i) its parent company and/or ~~Commitments~~ any Lending Affiliate of such Lender or to one or more Lenders or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and ~~its rights and obligations hereunder to another Lender, and~~ is managed by the same investment advisor of a Lender or an Affiliate of such investment advisor or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $1,000,000 (or the Dollar Equivalent thereof) in the aggregate for the assigning Lender or assigning Lenders, of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or $1,000,000 (or the Dollar Equivalent thereof) in the aggregate of such assigning Lender or assigning Lenders of its Term Loan Commitment and/or outstanding Term Loans ~~and/or Commitments and its rights and obligations hereunder~~ to one or more Eligible Transferees (~~including one~~ treating (A) any fund that invests in bank loans and (B) any other fund that invests in bank loans and is managed by the same investment advisor as such fund or ~~more Lenders~~by an Affiliate of such investment advisor, as a single Eligible Transferee)~~. Any assignment pursuant~~ , each of which assignees shall become a party to this ~~Section 12.4(b) need not be ratable~~ Agreement as ~~among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments~~ a Lender by execution of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment and Assumption Agreement substantially in the form of Exhibit D L, provided that (~~appropriately completed). In~~ i) at such time Schedule I shall be deemed modified to reflect the ~~event~~ Commitment and/or outstanding Term Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) if requested by the assigning Lender or the assignee Lender, upon surrender of the old Notes, if any, (with such old Notes, if any, of the assigning Lender to be marked "Canceled") (or the furnishing of a standard indemnity letter from the respective assigning Lender in respect of any lost Notes reasonably acceptable to the Borrower), new Notes will be issued, at the Borrower's expense, to such new Lender and to the assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments and/or outstanding Term Loans, as the case may be, (iii) the consent of the Administrative Agent and, so long as no Event of Default exists, the Borrower shall be required in connection with any assignment to ~~a Person~~ an Eligible Transferee pursuant to clause (y) of this Section 14.04(b) (which consent, in each case, shall not ~~previously a~~ be unreasonably withheld or delayed and shall not be required for Lenders that have been approved by the Borrower in writing in connection with the primary syndication which take by assignment on or prior to April 30, 2004), (iv) the consent of the Issuing Lender ~~hereunder~~shall be required in connection with any assignment of Revolving Loan Commitments pursuant to clause (y) of this Section 14.04(b) (which consent shall not be unreasonably withheld or delayed) and (v) the Administrative Agent shall receive at the time of each assignment, ~~either~~ from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $~~3,500~~3,500 and, ~~and at~~ provided further, that such transfer or assignment will not be effective until recorded by the ~~time~~ Administrative Agent on the Register pursuant to Section 14.14. To the extent of any assignment pursuant to this Section ~~12.4(b~~14.04(b), ~~(i) Annex 1.1~~ the assigning Lender shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Commitments and/or outstanding Term Loans. At the time of each assignment pursuant to this Section 14.04(b) to a Person which is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Lender's Revolving Loan Commitments and outstanding Obligations pursuant to Section 1.13 or this Section 14.04(b) would, due to circumstances existing at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee (which shall result in a direct reduction~~ assignment). Notwithstanding anything to the ~~Commitment~~ contrary contained above, at any time after the termination of the ~~assigning Lender) and~~ Total Revolving Loan Commitment, if any Revolving Loans or Letters of Credit remain outstanding, assignments may be made as provided above, except that the respective assignment shall be of a portion of the ~~other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to~~ outstanding Revolving Loans of the respective ~~assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents~~ RC Lender. (~~including without limitation amendments to this Agreement and the other Credit Documents~~c) ~~as shall be necessary to effect the foregoing.~~ Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any Lender or DBAG from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve ~~Bank~~ Lender in support of borrowings made by such Lender from such Federal Reserve ~~Bank.~~ Lender and, with the consent of the Administrative Agent, any Lender which is a fund may pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its trustee. No pledge pursuant to this clause (c) ~~Notwithstanding~~ shall release the transferor Lender from any ~~other provisions~~ of ~~this Section 12.4,~~ its obligations hereunder and in no ~~transfer~~ event shall any assignee or ~~assignment of the interests~~ pledgee be considered to be a "Lender" or ~~obligations of any Lender hereunder or any grant of participation therein shall~~ be ~~permitted if such transfer, assignment or grant would~~ entitled to require the ~~Borrower~~ assigning Lender to take or ~~Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of~~ omit any ~~State~~action hereunder. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Aearo CO I)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders~~. Each~~ , except as permitted by Section 6.01. (b) Any Lender may make, carry or transfer Loans or Letter of Credit Liabilities at ~~any~~ the time ~~grant participations in~~ owing to it at, to or for the account of, any of its ~~rights hereunder~~ branch offices or ~~under any~~ the offices of ~~the Notes to another financial institution~~an Affiliate of such Lender, provided that doing so shall not cause the Borrower to incur any additional costs hereunder at the time of such transfer. (c) Any Lender may assign its rights and delegate its obligations under this Agreement and further may sell participations in all or any part of any Loan or Loans made by it or its Commitment or Letter of Credit Liabilities at the time owing to it or any other interest herein to another bank or other entity; provided that (i) in the case of an assignment, such Lender shall (A) give to the Borrower and the Administrative Agent prior notice thereof (and the Administrative Agent shall promptly notify each Issuing Lender thereof), and, in the case of any assignment, the Borrower, the Issuing Lenders and the Administrative Agent shall, except as set forth in the last sentence of this Section 9.01(c), have consented thereto (such ~~--------~~ consent not to be unreasonably withheld or delayed) and (A) comply with Section 9.01(e) hereof and thereupon, the assignee (the “Purchasing Lender”) shall have, to the extent of such assignment (unless otherwise provided thereby), the rights and benefits described in Section 9.01(e) hereof, and (ii) in the case of a participation, except as set forth below, (A) the participant shall not have any rights under this Agreement or any ~~of the~~ other ~~Credit Documents~~ document delivered in connection herewith (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto); provided that a participation agreement may provide that a Lender will not agree to any modification, amendment or waiver of any provision in this Agreement described in clause (i), (iii), or (v) of Section 9.05(b) without the consent of the participant and (B) all amounts payable by the Borrower ~~hereunder~~ under Sections 2.09(e) and 2.09(h) hereof shall be determined as if ~~such~~ the Lender had not sold such participation. Except with respect to interest rate, principal amount of any Loan, fees, scheduled dates for payment of principal or interest or fees, scheduled termination of commitments and commitment amounts, a Lender will not in any such participation agreement restrict its ability to make any modification, amendment or waiver to this Agreement without the consent of the participant. Any Lender may furnish any information concerning the Borrower in possession of such Lender from time to time to Affiliates of such Lender and to assignees and participants (including prospective assignees and participants), provided, however, that (i) except ~~that~~ when such information is furnished to an Affiliate, the ~~participant~~ furnishing Lender shall give the Borrower prior notice of any furnishing of non public information (ii) the recipient shall agree to the terms of this Section 9.01 hereof and (iii) the furnishing of such information (and the nature, manner and extent thereof) by any Lender to its Affiliates and such assignees and participants shall be ~~entitled~~ further governed by the relevant agreement, assignment or participation agreement relating to such arrangement, assignment or participation, as the case may be. Notwithstanding anything to the ~~benefits~~ contrary in the foregoing, (A) any Lender may, without the consent of ~~Sections 1.10~~the Borrower or the Administrative Agent, ~~1.11~~assign any of its rights and interests in Loans hereunder to (x) a federal reserve bank, ~~2.6~~ (y) another Lender (other than a Defaulting Lender) or (z) any Affiliate of such Lender; (B) no consent of the Borrower to an assignment shall be required if at the time an Event of Default exists; (C) the Borrower shall be deemed to have consented to any assignment unless the Borrower shall object thereto by written notice to the Administrative Agent within fifteen Business Days after having received notice thereof, and ~~4.4~~ (D) no assignment may be made to (x) the Borrower or any of its Affiliates or (y) to a natural person. (d) Except pursuant to an assignment permitted by this Agreement but only to the extent set forth in such assignment, no Lender shall, as between the Borrower and that ~~such~~ Lender, be relieved of any of its obligations hereunder as a result of any sale, transfer or negotiation of, or granting of participations in, all or any part of the Loans or Commitment of or Letter of Credit Liabilities at the time owing to that Lender ~~would be entitled~~ or other obligations owed to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights Lender. (e) Subject to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity dateSection 9.01(c), any Lender may at any time assign to one or ~~reduce the rate~~ more Lenders or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitmentother financial institutions all, or a ~~mandatory prepayment~~proportionate part of all, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this ~~Agreement~~ Agreement, provided that (i) the minimum amount of such assignment shall be equivalent to (A) if the Purchasing Lender is not a Lender hereunder, $10,000,000 or ~~any other Credit Document. (b) Notwithstanding~~ the ~~foregoing, with the consent~~ aggregate amount of the ~~Agent~~ assigning Lender’s Commitment, whichever is less and (B) if the ~~Borrower~~ Purchasing Lender is a Lender hereunder, $5,000,000 or the aggregate amount of the assigning Lender’s Commitment, whichever is less and (~~each~~ ii) after giving effect to such assignment, the Commitment of ~~which consents~~ the assigning Lender is equivalent to not less than $10,000,000, unless such assigning Lender shall ~~not be unreasonably withheld), (x) any Lender may assign~~ have assigned all ~~or a portion~~ of ~~its Loans and/or Commitments and~~ its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders)under this Agreement. Any assignment made pursuant to ~~this~~ Section ~~12.4(b~~9.01(c) ~~need not~~ hereof shall be ~~ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment~~ made pursuant to ~~the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder~~a Transfer Supplement, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D G annexed hereto, executed by the Purchasing Lender, the transferor Lender, the Borrower and the Administrative Agent. Upon (~~appropriately completed). In the event~~ i) such execution of ~~any~~ such ~~assignment to a Person not previously a Lender hereunder~~Transfer Supplement, ~~either the assigning or the assignee Lender shall pay~~ (ii) delivery of an executed copy thereof to the Borrower, (iii) payment by such Purchasing Lender to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Purchasing Lender, and (iv) payment by such Purchasing Lender or transferor Lender (as they shall mutually agree) to the Administrative Agent of a ~~nonrefundable assignment~~ non refundable fee of $~~3,500~~3,500 to cover administrative and other expenses which may be incurred in connection with such assignment, such Purchasing Lender shall for all purposes be a Lender party to this Agreement and shall have the rights (including without limitation the benefits of Sections 2.09 and 2.10) and obligations of a Lender under this Agreement to the same extent as if it were an original party hereto and thereto with the pro rata Share of the applicable Commitment set forth in such Transfer Supplement, and at no further consent or action by the ~~time of any assignment pursuant to this Section 12.4(b)~~Borrower, ~~(i) Annex 1.1~~ the Lenders or the Administrative Agent shall be required. Such Transfer Supplement shall be deemed to ~~be amended~~ amend this Agreement to the extent, and only to the extent, necessary to reflect the ~~Commitment~~ addition of ~~the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any~~ such ~~assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each~~ Purchasing Lender and the ~~Borrower agree to execute~~ resulting adjustment of pro rata Shares arising from the purchase by such ~~documents (including without limitation amendments to~~ Purchasing Lender of all or a portion of the rights and obligations of such transferor Lender under this Agreement and the ~~other Credit Documents)~~ Loans. Upon the consummation of any transfer to a Purchasing Lender pursuant to this paragraph (e), the transferor Lender, the Administrative Agent and the Borrower shall make appropriate arrangements so that, if requested, a replacement Note is issued to such transferor Lender and a new Note or, as ~~shall be necessary~~ appropriate, a replacement Note, if requested, issued to ~~effect~~ such Purchasing Lender, in each case in principal amounts reflecting their pro rata Shares or, as appropriate, their outstanding Loans, as adjusted pursuant to such Transfer Supplement. Notwithstanding anything to the ~~foregoing. Nothing~~ contrary contained in this ~~clause (b) shall prevent or prohibit~~ Agreement, neither the Borrower nor any of its Affiliates nor any Defaulting Lender ~~from pledging its Notes or Loans to~~ may be a ~~Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank~~Purchasing Lender. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (df) Each Lender ~~initially party to~~ that sells a participation shall, acting solely for this purpose as a nonfiduciary 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 this Agreement ~~hereby represents~~(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, ~~and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will~~loans, ~~upon~~ letters of credit or its ~~becoming party to~~ other obligations under this Agreement) except to the extent that such disclosure is necessary to establish that such commitment, ~~represent that it is a commercial lender~~loan, ~~other financial institution~~ letter of credit or other ~~"accredited" investor (as defined~~ obligation is in ~~SEC Regulation D~~registered form under Section 5f.103-1(c) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeUnited States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive, in the absence of manifest~~ conclusive absent clearly demonstrable error, and ~~the Borrower, the Agent and the Lenders may~~ such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein~~ such participation for all purposes of this ~~Agreement,~~ Agreement notwithstanding any notice to the contrary~~. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Textron Inc)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or -------- transfer any of its rights or obligations hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such ~~--------~~ participation, the -------- participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, ~~2.6~~ 2.06 and ~~4.4~~ 4.04 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, ~~provided,~~ provided further, that no ~~-------- -------~~ Lender shall transfer, -------- ------- grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan or ~~Note~~ Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute ~~a waiver of any Scheduled Repayment or~~ an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release ~~any Guarantor~~ all or substantially all of the Guarantors from ~~its~~ their obligations under ~~its~~ the Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral except in accordance with the terms of the Credit Documents or (iv) consent to the assignment or transfer by ~~any Credit Party~~ the Borrower of any of its rights and obligations under this ~~Agreement or any other Credit Document~~Agreement. (b) Notwithstanding the foregoing~~, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld)~~, (x) any Lender may assign all or a portion of its outstanding A Term Loans, B Term Loans and/or ~~Commitments~~ Revolving Commitment (and related outstanding Obligations) and its rights and obligations hereunder to ~~another~~ (i) its parent company and/or affiliates of such Lender which is at least 50% owned by such Lender or its parent company or (ii) in the case of a Lender that is a fund that invests in loans, any other fund that invests in loans and is managed or advised by the same fund manager or investment adviser of such Lender or an Affiliate of such fund manager or investment adviser of such Lender, and (y) with the consent of the Administrative Agent and, so long as no Event of Default is then in existence, the Borrower (which consents shall not be unreasonably withheld or delayed), any Lender may assign all or a portion of its outstanding A Term Loans, B Term Loans and/or ~~Commitments~~ Revolving Commitment and its rights and obligations hereunder to one or more ~~Eligible Transferees~~ commercial lenders or other financial institutions (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence ~~(i)~~ shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire outstanding Loans and Commitment ~~and Loans~~ of the assigning Lender ~~are~~ is so ~~assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility~~assigned. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section ~~12.4(b~~12.04(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment ~~Agreement substantially in~~ Agreement. At the ~~form of Exhibit D (appropriately completed). In the event~~ time of any such ~~assignment to a Person not previously a Lender hereunder~~assignment, (i) either the assigning or the assignee Lender shall pay to the Administrative Agent a nonrefundable assignment fee of $3,500, ~~and at the time of any assignment pursuant to this Section 12.4(b),~~ (iii) Annex ~~1.1~~ I shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (iiiii) ~~if any such assignment occurs after~~ upon the ~~Initial Borrowing Date~~request of the assignee and/or assigning Lender, the Borrower will issue ~~new~~ Notes to the respective assignee ~~and~~ and/or to the assigning Lender in conformity with the requirements of Section ~~1.5~~1.05. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. Notwithstanding anything to the contrary contained in this clause (b), any Lender that is a fund that invests in bank loans may (without the consent of the Borrower or the Administrative Agent) pledge all or any portion of its rights in connection with this Agreement to the trustee for, or other representative of, holders of obligations owed, or securities issued, by such fund as security for such obligations or securities; provided that any foreclosure or other exercise of remedies by such trustee -------- shall be subject to the provisions of this Agreement and the other Credit Documents in all respects. No pledge described in the immediately preceding sentence shall release such Lender from its obligations hereunder. (c) Notwithstanding any other provisions of this Section ~~12.4~~12.04, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower ~~or Holdings~~ to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes ~~or acquires~~ loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided ~~--------~~ that subject to the preceding clauses -------- (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Unilab Corp /De/)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Xxxxxx may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Revolving Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Total Commitments and the Revolving Loans at the time owing to ~~another~~ it and the Revolving Credit Notes held by it) to any Eligible Assignee; provided, however, that (i) the Agent and Xxxxxx must give their prior written consent to such assignment (which consent shall not be unreasonably withheld) unless such assignment is to an Affiliate of the assigning Lender, (ii) the amount of any of the Total Commitments of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent) shall not be less than $5,000,000, and (yiii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a Revolving Credit Note or Revolving Credit Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2,500 payable to Agent by such Eligible Assignee. Xxxxxx shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender ~~may assign~~ or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Total Commitments of $10,000,000; provided, however, no such minimum amount shall be required with respect to any such assignment made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Xxxxxx, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Revolving Credit Note or Revolving Credit Notes, a new Revolving Credit Note or Revolving Credit Notes to the order of such assignee in a principal amount equal to the applicable Total Commitments assumed by it pursuant to such Assignment and Acceptance and new Revolving Credit Note or Revolving Credit Notes to the assigning Lender in the amount of its retained Total Commitments. Such new Revolving Credit Note or Revolving Credit Notes shall be dated the date of the surrendered Revolving Credit Note or Revolving Credit Notes that they replace, and shall otherwise be in substantially the forms of the appropriate Revolving Credit Notes described herein. (d) Each Lender may, without the consent of Xxxxxx or the Agent, sell participations to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ post- assignment rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Total Commitments in the Revolving Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the Revolving ~~Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Credit Notes held by it), provided, however, that (i) ~~shall~~ no Lender may sell a participation in its aggregate Total Commitments (after giving effect to any permitted assignment hereof) in an amount in excess of fifty percent (50%) of such aggregate Total Commitments and any such Lender must retain after consummation of the ~~extent~~ sale of such ~~assignment represents an assignment~~ participation a minimum aggregate amount of Total Commitments of $10,000,000, provided, however, sales of participations to an ~~institution other than one or more Lenders~~ Affiliate of such Lender shall not be included in such calculations; provided, however, no such limitation shall be applicable to any such participation sold at any time there exists an Event of Default hereunder, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or such Lender's obligations under ~~the Notes, any reference in~~ this Agreement ~~or the Notes to~~ shall remain unchanged, (iii) such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the performance of such obligations, (iv) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article III of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiv) ~~if any such assignment occurs after~~ Xxxxxx and the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ Agent and other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Xxxxxx relating to the Revolving Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Xxxxxx of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section 14.06(e), disclose to the assignee or participant or proposed assignee or participant any information relating to Xxxxxx or the other Consolidated Companies furnished to such Lender by or on behalf of ~~and as agent~~ Xxxxxx or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower shall maintain at its Payment Office a copy~~ purpose of ~~each Assignment Agreement delivered~~ making any necessary credit judgments with respect to ~~it (as required hereby)~~ the Revolving Loan Commitments and ~~a register (~~not to use the ~~"Register") for --------~~ information in any manner prohibited by any law, including without limitation, the ~~recordation~~ securities laws of the ~~names and addresses~~ United States. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the ~~Lenders~~ confidential nature of the information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Xxxxxx and the ~~registered owners of~~ Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeany regulatory agency or authority with proper jurisdiction. The ~~entries in the Register~~ proposed participant or assignee shall ~~be conclusive, in the absence of manifest error,~~ further agree to return all documents or other written material and ~~the Borrower~~copies thereof received from any Lender, the Agent ~~and the Lenders may treat each Person whose name is recorded in the Register as the owner~~ or Xxxxxx relating to such confidential information unless otherwise properly disposed of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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~~such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Revolving Credit Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 3.07(b) have been levied or imposed so as to require withholdings or deductions by Xxxxxx and payment by Xxxxxx of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 3.10 or for its reduced rate of return pursuant to Section 3.16, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Xxxxxx, then and in such event, upon request from Xxxxxx delivered to such Lender and the ~~Note(s) held~~ Agent, such Lender shall assign, in accordance with the provisions of Section 14.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Xxxxxx, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Revolving Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Total Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Credit Agreement (Nelson Thomas Inc)

Appears in 1 contract

Samples: Credit Agreement (Usi Holdings Corp)

Appears in 1 contract

Samples: Revolving and Term Loan Agreement (Brown & Brown Inc)

Appears in 1 contract

Samples: Credit Agreement (Partnerre LTD)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Intermet may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Commitments, Letter of Credit Obligations and the Loans at the time owing to ~~another~~ it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) -------- ------- the Agent and Intermet must give their prior written consent to such assignment (which consent shall not be unreasonably withheld) unless such assignment is to an Affiliate of the assigning Lender, (ii) the amount of the Commitments or Loans or Letter of Credit Obligations, of the assigning Lender subject to each assignment (determined as of the date the assignment and ac ceptance with respect to such assignment is delivered to the Agent) shall not be less than $5,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2500, and (yiv) the assignee must execute and deliver a confirmation of its acceptance of the terms and conditions of the Intercreditor Agreement to the other parties to the Intercreditor Agreement in accordance with Section 10(g) thereof. Intermet shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Commitments, the Loans and the Letter of Credit Obligations, as the case may ~~assign~~ be, of $15,000,000; provided, however, no -------- ------- such minimum amount shall be required with respect to any such assignment made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Intermet, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Intermet or the Agent, sell participations to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans~~a portion of its Commitments, the ~~Tranche B Term Loans~~ Letter of Credit Obligations and the ~~Revolving Commitments of~~ Loans owing to it and the ~~assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Notes held by it), provided, however, that (i) ~~shall~~ no Lender may sell a -------- ------- participation in its aggregate Commitments (after giving effect to ~~the extent~~ any permitted assignment hereof) in an amount in excess of fifty percent (50%) of such ~~assignment represents an assignment~~ aggregate Commitments, provided, however, sales of participations to an ~~institution other than one or more Lenders~~ -------- ------- Affiliate of such Lender shall not be included in such calculation; provided, -------- however, no such maximum amount shall be applicable to any such participation ------- sold at any time there exists an Event of Default hereunder, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or such Lender's obligations under ~~the Notes, any reference in~~ this Agreement ~~or the Notes to~~ shall remain unchanged, (iii) such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee to~~ other parties hereto for the ~~extent of their respective interests and the respective assignee shall have, to the extent~~ performance of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lendersobligations, and (iiiv) ~~if any such assignment occurs after~~ the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ participating bank or other entity shall not be entitled to the ~~respective assignee~~ benefit (except through its selling Lender) of the cost protection provisions contained in Article III of this Agreement, and (v) ----------- Intermet and the Agent and other Lenders shall continue to ~~the assigning~~ deal solely and directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Intermet relating to the Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Intermet of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Intermet or the other Consolidated Companies furnished to such Lender by or on behalf of ~~and as agent~~ Intermet or any other Consolidated Company. With respect to any disclosure of confidential, non- public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower shall maintain at its Payment Office a copy~~ purpose of ~~each Assignment Agreement delivered~~ making any necessary credit judgments with respect to ~~it (as required hereby)~~ this credit facility and ~~a register (~~not to use the ~~"Register") for --------~~ information in any manner prohibited by any law, including without limitation, the ~~recordation~~ securities laws of the ~~names and addresses~~ United States. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the ~~Lenders~~ confidential nature of the information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Intermet and the ~~registered owners of~~ Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeany regulatory agency or authority with proper jurisdiction. The ~~entries in the Register~~ proposed participant or assignee shall ~~be conclusive, in the absence of manifest error,~~ further agree to return all documents or other written material and ~~the Borrower~~copies thereof received from any Lender, the Agent ~~and the Lenders may treat each Person whose name is recorded in the Register as the owner~~ or Intermet relating to such confidential information unless otherwise properly disposed of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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~~such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided -------- that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 3.07(b) have been levied ---------------- or imposed so as to require withholdings or deductions by Intermet and payment by Intermet of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of increased costs or reduced rate of return pursuant to Section 3.10 or any ~~interest due~~ Lender determines that LIBOR is ------------ unascertainable or illegal pursuant to ~~such Non-U.S.~~ Section 3.08 or Section 3.09, or any ------------ ------------ Lender ~~under~~ makes a claim for increased costs or determines that its participation in any Letter of Credit is illegal pursuant to Section 3.09, or (iii) any Lender ------------ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Intermet, then and in such event, upon request from Intermet delivered to such Lender and the ~~Note(s) held~~ Agent, such Lender shall assign, in accordance with the provisions of Section 10.06(c), all ---------------- of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Intermet, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes~~ of such assignment; provided, however, Lenders subject to -------- ------- this shall be treated in a ~~Lender, Qualified Non-U.S. Lender Notes~~substantially identical manner.

Appears in 1 contract

Samples: Credit Agreement (Intermet Corp)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Intermet may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of ~~all~~ the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Commitments, Letter of Credit Obligations and the Loans at the time owing to ~~another~~ it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) the Agent and Intermet must give their prior written consent to such assignment (which consent shall not be unreasonably withheld) unless such assignment is to an Affiliate of the assigning Lender, (ii) the amount of the Commitments, in the case of the Revolving Loan Commitments and the Currency Loan Commitments, or Loans or Letter of Credit Obligations, of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Agent) shall not be less than $5,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and, unless such assignment is to an Affiliate of such Lender, a processing and recordation fee of $2500, and (yiv) the assignee must execute and deliver a confirmation of its acceptance of the terms and conditions of the Intercreditor Agreement to the other parties to the Intercreditor Agreement in accordance with Section 12(g) thereof. Intermet shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Commitments, the Loans and the Letter of Credit Obligations, as the case may ~~assign~~ be, of $15,000,000; provided, however, no such minimum amount shall be required with respect to any such assignment made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Intermet, at its own expense, shall execute and deliver to the Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Intermet or the Agent, sell participations to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans~~a portion of its Commitments, the ~~Tranche B Term Loans~~ Letter of Credit Obligations and the ~~Revolving Commitments of~~ Loans owing to it and the ~~assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Notes held by it), provided, however, that (i) ~~shall~~ no Lender may sell a participation in its aggregate Commitments (after giving effect to ~~the extent~~ any permitted assignment hereof) in an amount in excess of fifty percent (50%) of such ~~assignment represents an assignment~~ aggregate Commitments, provided, however, sales of participations to an ~~institution other than one or more Lenders~~ Affiliate of such Lender shall not be included in such calculation; provided, however, no such maximum amount shall be applicable to any such participation sold at any time there exists an Event of Default hereunder, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or such Lender's obligations under ~~the Notes, any reference in~~ this Agreement ~~or the Notes to~~ shall remain unchanged, (iii) such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee to~~ other parties hereto for the ~~extent of their respective interests and the respective assignee shall have, to the extent~~ performance of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lendersobligations, and (iiiv) ~~if any such assignment occurs after~~ the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ participating bank or other entity shall not be entitled to the ~~respective assignee~~ benefit (except through its selling Lender) of the cost protection provisions contained in Article V of this Agreement, and (v) Intermet and the Agent and other Lenders shall continue to ~~the assigning~~ deal solely and directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Intermet relating to the Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Intermet of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation, pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Intermet or the other Consolidated Companies furnished to such Lender by or on behalf of ~~and as agent~~ Intermet or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower shall maintain at its Payment Office a copy~~ purpose of ~~each Assignment Agreement delivered~~ making any necessary credit judgments with respect to ~~it (as required hereby)~~ this credit facility and ~~a register (~~not to use the ~~"Register") for --------~~ information in any manner prohibited by any law, including without limitation, the ~~recordation~~ securities laws of the ~~names and addresses~~ United States. The proposed participant or assignee shall agree not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to show such information, each of whom shall be informed of the ~~Lenders~~ confidential nature of the information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Intermet and the ~~registered owners of~~ Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to timeany regulatory agency or authority with proper jurisdiction. The ~~entries in the Register~~ proposed participant or assignee shall ~~be conclusive, in the absence of manifest error,~~ further agree to return all documents or other written material and ~~the Borrower~~copies thereof received from any Lender, the Agent ~~and the Lenders may treat each Person whose name is recorded in the Register as the owner~~ or Intermet relating to such confidential information unless otherwise properly disposed of ~~the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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~~such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 5.07(b) have been levied or imposed so as to require withholdings or deductions by Intermet and payment by Intermet of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of increased costs pursuant to Section 5.10 or for its reduced rate of return pursuant to Section 5.17 or any ~~interest due~~ Lender determines that LIBOR is unascertainable or illegal pursuant to ~~such Non-U.S.~~ Section 5.08 or Section 5.09, or any Lender ~~under~~ makes a claim for increased costs or determines that its participation in any Letter of Credit is illegal pursuant to Section 5.22, or (iii) any Lender shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Docu- ments requested by Intermet, then and in such event, upon request from Intermet delivered to such Lender and the ~~Note(s) held~~ Agent, such Lender shall assign, in accordance with the provisions of Section 12.06(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Intermet, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Total Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes~~ of such assignment; provided, however, Lenders subject to this subsection due to a ~~Lender~~claim pursuant to Section 5.08, ~~Qualified Non-U.S. Lender Notes~~Section 5.09 or an illegality claim pursuant to Section 5.22 shall be treated in a substantially identical manner.

Appears in 1 contract

Samples: Credit Agreement (Intermet Corp)

Appears in 1 contract

Samples: Credit Agreement (Salt Holdings Corp)

Benefit of Agreement. (a) ~~This~~ The provisions of this Credit Agreement and the other Credit Documents shall be binding ~~--------------------~~ upon and inure to the benefit of the parties hereto and ~~be enforceable by the~~ thereto and their respective successors and assigns of permitted hereby, except that the ~~parties hereto, provided that no Credit Party --------~~ Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent of ~~all~~ each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with the ~~Lenders~~provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). ~~Each~~ Nothing in this Credit Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Credit Agreement. (b) Any Lender may at any time ~~grant participations in any~~ assign to one or more Eligible Assignees all or a portion of its rights ~~hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights~~ and obligations under this Credit Agreement ~~or any of~~ and the other Credit Documents (including all or a portion of its Commitment and the ~~participant's~~ Loans (including for purposes of this subsection (b), participations in LOC Obligations and in Swingline Loans) at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as defined in subsection (g) of this Section) with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s Loans and Commitments, and rights ~~against such Lender~~ and obligations with respect thereto, assigned, except that this clause (ii) shall not apply to rights in respect of Swingline Loans; (iii) any assignment must be approved by the Agent, the Issuing Lender and the Swingline Lender unless the Person that is the proposed assignee is itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500. Subject to acceptance and recording thereof by the Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this Credit Agreement and, to the extent of the interest assigned by such ~~participation~~ Assignment and Assumption, have the rights and obligations of a Lender under this Credit Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Credit Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to be ~~those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder~~ a party hereto but shall ~~be determined as if such Lender had not sold such participation, except that the participant shall~~ continue to be entitled to the benefits of Sections ~~1.10~~3.10, ~~1.11~~3.14, ~~2.6~~ 3.15 and ~~4.4 of this Agreement~~ 11.5 with respect to facts and circumstances occurring prior to the ~~extent that~~ effective date of such ~~Lender would be entitled to such benefits if~~ assignment). Upon request, the ~~participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender~~ Borrower (at its expense) shall ~~transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except~~ execute and deliver a Note to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignee Lender. Any assignment or transfer by ~~any~~ a Lender of rights or obligations under this Credit ~~Party~~ Agreement that does not comply with this subsection shall be treated for purposes of ~~any~~ this Credit Agreement as a sale by such Lender of ~~its~~ a participation in such rights and obligations ~~under~~ in accordance with subsection (d) of this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve BankSection. (c) ~~Notwithstanding any other provisions of~~ The Agent, acting solely for this ~~Section 12.4, no transfer or assignment~~ purpose as an agent of the ~~interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer~~Borrower, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at ~~its Payment~~ the Agent’s Office a copy of each Assignment ~~Agreement~~ and Assumption delivered to it ~~(as required hereby)~~ and a register ~~(the "Register")~~ for ~~--------~~ the recordation of the names and addresses of the ~~Lenders~~ Lenders, and the ~~registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment~~ Commitments of, and principal ~~amount~~ amounts of the ~~Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term~~ Loans and ~~the Additional Tranche B Term Loans~~ LOC Obligations owing to, each Lender pursuant to the terms hereof from time to ~~time~~time (the “Register”). The entries in the Register shall be conclusive~~, in the absence of manifest error~~, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as ~~the owner of the Loan or Qualified Non-U.S.~~ a Lender ~~Note recorded therein~~ hereunder for all purposes of this Credit Agreement, notwithstanding ~~any~~ notice to the contrary. 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. In addition, at any time that a request for a consent for a material or other substantive change to the Credit Documents is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from the Agent a copy of the Register. (d) Any Lender may at any time, without the consent of, or notice to, the Borrower or the Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Credit Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in LOC Obligations and/or Swingline Loans) owing to it); provided that (i) such Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a) through (g) of the first proviso to Section 11.6 that directly affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.10, 3.14 and 3.15 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.2 as though it were a Lender, provided such Participant agrees to be subject to Section 3.9 as though it were a Lender. (e) A Participant shall not be entitled to receive any greater payment under Section 3.10 or 3.14 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that is not a “United States Person” within the meaning of Section 7701(a)(30) of the Code shall not be entitled to the benefits of Section 3.14 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.14 as though it were a Lender. (f) Any ~~Non-U.S.~~ Lender ~~that could become completely exempt from withholding~~ may at any time pledge or assign a security interest in all or any portion of ~~any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender~~ its rights under this Credit Agreement ~~or the Notes~~ (including under its Note, if ~~the Note(s~~any) ~~held by~~ to secure obligations of such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, including any pledge or assignment to ~~issue~~ secure obligations to a Federal Reserve Bank; provided that no such ~~Non-U.S.~~ pledge or assignment shall release such Lender on from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (g) As used herein, the ~~date it becomes a Lender, Qualified Non-U.S. Lender Notes.~~following terms have the following meanings:

Appears in 1 contract

Samples: Credit Agreement (Chattem Canada Holdings Inc)

Appears in 1 contract

Samples: Credit Agreement (Omnicom Group Inc)

Appears in 1 contract

Samples: 364 Day Credit Agreement (Omnicom Group Inc)

Benefit of Agreement. (a) This Agreement shall be binding -------------------- upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that no Credit Party~~ however, the Borrower may not -------- ~~may~~ ------- assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ each of the ~~Lenders. Each Lender~~ Banks and, provided further, that, although any Bank may ~~at any time~~ grant participations in its ---------------- rights hereunder, such Bank shall remain a "Bank" for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights~~ Commitments or Loans hereunder ~~or under any of the Notes to another financial institution,~~ except as provided ~~that~~ in ~~the case of any such -------- participation,~~ Section 13.04(b)) and the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower constitute a "Bank" hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, ~~provided,~~ provided further, that no ~~-------- ------- Lender~~ Bank shall ~~transfer,~~ transfer or grant ~~or assign~~ any participation ---------------- under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan ~~or Note~~ Maturity Date) in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any post-default increase in interest rates), ) or reduce the principal amount thereof, or increase ~~such~~ the amount of the participant's ~~participating interest in any Commitment~~ participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment,~~ Commitment or of a mandatory ~~prepayment,~~ repayment of Loans shall not constitute a change in the terms of such participation, that an increase in any ~~Commitment~~Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof and that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i)), (ii) ~~release~~ consent to the assignment or transfer by the Borrower of any ~~Guarantor from~~ of its rights and obligations under ~~its Guaranty except in accordance with the terms thereof,~~ this Agreement or (iii) release all or substantially all of the Collateral or under all of the Security Documents (ivexcept as expressly provided in the Security Documents) ~~consent to~~ supporting the ~~assignment or transfer by any Credit Party~~ Loans hereunder in which such participant is participating. In the case of any ~~of its~~ such participation, the participant shall not have any rights ~~and obligations~~ under this Agreement or any of the other Credit ~~Document~~Documents (the participant's rights against such Bank in respect of such participation to be those set forth in the agreement executed by such Bank in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Bank had not sold such participation. (b) Notwithstanding the foregoing, any Bank (or any Bank together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Banks) may (x) ~~any Lender may~~ assign all or a portion of its Revolving Loan Commitment (and related outstanding Obligations hereunder) and/or its outstanding Term Loans to (i) its parent company and/or ~~Commitments~~ any affiliate of such Bank which is at least 50% owned by such Bank or its parent company or to one or more Banks or (ii) in the case of any Bank that is a fund that invests in bank loans or that manages (directly or through an Affiliate) any fund that invests in bank loans, any fund that invests in bank loans and ~~its rights and obligations hereunder to another Lender~~is managed by the same investment advisor as such Bank, ~~and~~ by an Affiliate of such investment advisor or by such Bank, as the case may be, or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least $5,000,000 in the aggregate for the assigning Bank or assigning Banks, of ~~its~~ such Revolving Loan Commitments (and related outstanding Obligations hereunder) and outstanding principal amount of Term Loans ~~and/or Commitments and its rights and obligations hereunder~~ to one or more Eligible Transferees (~~including one~~ treating (x) any fund that invests in bank loans and (y) any other fund that invests in bank loans and is managed by the same investment advisor as such fund or ~~more Lenders~~by an Affiliate of such investment advisor, as a single Eligible Transferee)~~. Any assignment pursuant~~ , each of which assignees shall become a party to this ~~Section 12.4(b~~Agreement as a Bank by execution of an Assignment and Assumption Agreement, provided that, (i) ~~need not~~ at such time Schedule I shall be ~~ratable as among~~ deemed modified -------- to reflect the ~~Tranche A~~ Revolving Loan Commitments and/or outstanding Term Loans, as the ~~Tranche B Term Loans~~ case may be, of such new Bank and ~~the Revolving Commitments~~ of the existing Banks, (ii) upon surrender of the old Notes (or the furnishing of a standard indemnity letter from the respective assigning ~~Lender except as provided~~ Bank in ~~the next sentence. No assignment pursuant~~ respect of any lost Notes reasonably acceptable to the ~~immediately preceding sentence~~ Borrower), new Notes will be issued, at the Borrower's expense, to such new Bank and to the assigning Bank, such new Notes to be in conformity with the requirements of Section 1.05 (iwith appropriate modifications) ~~shall~~ to the extent ~~such assignment represents an~~ needed to reflect the revised Revolving Loan Commitments and/or outstanding Term Loans, as the case may be, (iii) the consent of the Administrative Agent and, so long as no Default or Event of Default is then in existence, the Borrower shall be required in connection with any assignment to an ~~institution other than one~~ Eligible Transferee pursuant to clause (y) of this Section 13.04(b) (which consent, in each case, shall not be unreasonably withheld or ~~more Lenders hereunder~~delayed), ~~be in an aggregate amount less than $5,000,000 unless~~ (iv) the ~~entire Commitment and Loans~~ consent of ~~the assigning Lender are so assigned or (ii)~~ each Letter of Credit Issuer shall be ~~effective if the result thereof is that~~ required in connection with any ~~Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the~~ assignment of Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment Loan Commitments pursuant to clause (y) of this Section ~~12.4(b~~13.04(b) (which consent shall not be ~~effected by~~ unreasonably withheld or delayed) and (v) the ~~assigning Lender and~~ Administrative Agent shall receive at the ~~assignee Lender executing an Assignment Agreement substantially in the form~~ time of ~~Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder~~each assignment, ~~either~~ from the assigning or assignee Bank, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $~~3,500~~5,000 and, ~~and at~~ provided further, that ---------------- such transfer or assignment will not be effective until recorded by the ~~time~~ Administrative Agent on the Register pursuant to Section 13.17. To the extent of any assignment pursuant to this Section ~~12.4(b~~13.04(b), ~~(i) Annex 1.1~~ the assigning Bank shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitments and/or outstanding Term Loans. At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Bank hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes, the respective assignee Bank shall provide to the Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Bank's Revolving Loan Commitment and outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, due to circumstances existing at the time of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or 4.04 from those being charged by the respective assigning Bank prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee (which shall result in a direct reduction~~ assignment). Notwithstanding anything to the ~~Commitment~~ contrary contained above, at any time after the termination of the ~~assigning Lender) and~~ Total Revolving Loan Commitment, if any Revolving Loans or Letters of Credit remain outstanding, assignments may be made as provided above, except that the respective assignment shall be of a portion of the ~~other Lenders~~outstanding Revolving Loans of the respective RL Bank and its participation in Letters of Credit and its obligation to make Mandatory Borrowings, ~~and (ii) if~~ although any such assignment ~~occurs~~ effected after the ~~Initial~~ termination of the Total Revolving Loan Commitment shall not release the assigning RL Bank from its obligations as a Participant with respect to outstanding Letters of Credit or to fund its share of any Mandatory Borrowing ~~Date, the Borrower will issue new Notes to~~ (although the respective assignee ~~and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender~~ may agree, as between itself and the ~~Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as~~ respective assigning RL Bank, that it shall be ~~necessary to effect the foregoing.~~ responsible for such amounts). (c) Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any ~~Lender~~ Bank or BTCo from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such ~~Lender~~ Bank from such Federal Reserve ~~Bank.~~ Bank and, with the consent of the Administrative Agent, any Bank which is a fund may pledge all or any portion of its Notes or Loans to its trustee in support of its obligations to its trustee. No pledge pursuant to this clause (c) ~~Notwithstanding~~ shall release the transferor Bank from any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlobligations hereunder. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Pacer Express Inc)

Appears in 1 contract

Samples: Credit Agreement (Noble Corp)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the parties hereto, all future holders of the Term Note evidencing the Term Loan, and their respective successors and ~~assigns of the parties hereto, provided~~ assigns; PROVIDED that no Credit Party ~~--------~~ may assign or transfer any of its ~~rights or obligations~~ interests hereunder without the prior written consent of ~~all~~ the ~~Lenders. Each~~ Lender; and PROVIDED, FURTHER, that the Lender may at not assign or transfer any ~~time grant participations~~ of its interests hereunder without the prior written consent of Holdings and the Borrower, which consent shall not be unreasonably withheld; provided, that if an Event of Default occurs, no consent of Holdings or the Borrower shall be required. (b) The Lender agrees to keep confidential (and to cause its officers, directors, employees, agents and representatives to keep confidential) all information, materials and documents furnished to the Lender (the "Information"). Notwithstanding the foregoing, the Lender shall be permitted to disclose Information (i) to such of its officers, directors, employees, agents and representatives as need to know such Information in connection with its participation in any of ~~its rights hereunder~~ the transactions contemplated hereby or ~~under any of~~ the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 administration of this ~~Agreement~~ Agreement; (ii) to the extent ~~that~~ required by applicable laws and regulations or by any subpoena or similar legal process, or requested by any governmental agency or authority; (iii) to the extent such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver Information (A) becomes publicly available other than as a result of a breach of this Agreement or any other ~~Credit Document except~~ confidentiality agreement with respect thereto, (B) becomes available to the Lender on a non-confidential basis from a source other than Holdings, the Borrower, or any of their respective subsidiaries, officers, directors, employees, agents or representatives or (C) was available to the Lender on a non-confidential basis prior to its disclosure to the Lender by the Borrower, Holdings or any of their respective subsidiaries; (iv) to the extent the Borrower, Holdings or any of their respective subsidiaries shall have consented to such ~~amendment~~ disclosure in writing; or ~~waiver would~~ (iv) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with ~~a waiver of~~ the ~~applicability~~ sale of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral ~~or (iv) consent~~ pursuant to the ~~assignment or transfer by any Credit Party~~ provisions of any of ~~its rights and obligations under this Agreement~~ the Security Documents; or ~~any other Credit Document.~~ (bvi) ~~Notwithstanding the foregoing,~~ to a prospective transferee so long as such prospective transferee shall enter into a written agreement with the ~~consent~~ Lender to preserve the confidentiality of ~~the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x)~~ any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall Information to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference set forth in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided thereinSection 9.04(b), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Ivax Corp /De)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ Borrower may not assign or transfer any of its ~~rights or obligations~~ interest hereunder without the prior written consent of all the Lenders. Each Lender may at any time grant participations in any of its rights hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) ~~Notwithstanding~~ Any Lender may make, carry or transfer Loans at, to or for the ~~foregoing~~account of, ~~with~~ any of its branch offices or the ~~consent~~ office of ~~the Agent and the Borrower~~ an Affiliate of such Lender. (~~each of which consents shall not be unreasonably withheld), (x~~c) ~~any~~ Each Lender may assign all or a portion of its ~~Loans and/or Commitments and its~~ interests, rights and obligations ~~hereunder~~ under this Agreement (including all or a portion of any of its Commitments and the Loans at the time owing to ~~another~~ it and the Notes held by it) to any Eligible Assignee; provided, however, that (i) the Administrative Agent and Borrower (in the case of the Borrower only if an Event of Default has not occurred and is uncured) must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed) unless such assignment is to an Affiliate of the assigning Lender, (ii) the amount of the Commitments, or Loans, in the case of assignment of Loans, of the assigning Lender subject to each assignment (determined as of the date the assignment and acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 and (yiii) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a Note or Notes subject to such assignment and a processing and recordation fee of $2,500. Borrower shall not be responsible for such processing and recordation fee or any costs or expenses incurred by any Lender or the Administrative Agent in connection with such assignment. From and after the effective date specified in each Assignment and Acceptance, which effective date shall be at least five (5) Business Days after the execution thereof, the assignee thereunder shall be a party hereto and to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement. Notwithstanding the foregoing, the assigning Lender must retain after the consummation of such Assignment and Acceptance, a minimum aggregate amount of Commitments or Loans, as the case may ~~assign~~ be, of $5,000,000; provided, however, no such minimum amount shall be required with respect to any such assignment made at any time there exists an Event of Default hereunder. Within five (5) Business Days after receipt of the notice and the Assignment and Acceptance, Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the order of such assignee in a principal amount equal to the applicable Commitments or Loans assumed by it pursuant to such Assignment and Acceptance and new Note or Notes to the assigning Lender in the amount of its retained Commitment or Commitments or amount of its retained Loans. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, shall be dated the date of the surrendered Note or Notes which they replace, and shall otherwise be in substantially the form attached hereto. (d) Each Lender may, without the consent of Borrower and the Administrative Agent, sell participations to one or more banks or other entities in all or a portion of its ~~Loans and/or Commitments and its~~ rights and obligations ~~hereunder to one or more Eligible Transferees~~ under this Agreement (including ~~one~~ all or ~~more Lenders). Any assignment pursuant~~ a portion of its Commitments in the Loans owing to ~~this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans~~ it and the ~~Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence~~ Notes held by it), provided, however, that (i) such Lender's obligations under this Agreement shall ~~to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder~~remain unchanged, ~~be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or~~ (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such ~~assigning~~ Lender shall ~~thereafter refer to such Lender and~~ remain solely responsible to the ~~respective assignee~~ other parties hereto for the performance of such obligations, (iii) the participating bank or other entity shall not be entitled to the ~~extent of their respective interests and the respective assignee shall have, to the extent of such assignment~~ benefit (~~unless otherwise provided therein), the same rights and benefits as it would if it were such assigning~~ except through its selling Lender~~. Each assignment pursuant to this Section 12.4(b~~) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the ~~respective assignee (which shall result~~ cost protection provisions contained in ~~a direct reduction to the Commitment~~ Article 4 of ~~the assigning Lender) and of the other Lenders~~this Agreement, and (iiiv) ~~if any such assignment occurs after~~ Borrower and the ~~Initial Borrowing Date, the Borrower will issue new Notes~~ Administrative Agent and other Lenders shall continue to ~~the respective assignee~~ deal solely and ~~to the assigning~~ directly with each Lender in ~~conformity~~ connection with ~~the requirements of Section 1.5. Each Lender~~ such Lender's rights and ~~the Borrower agree to execute such documents (including without limitation amendments to~~ obligations under this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by , and such Lender ~~from such Federal Reserve Bank. (c) Notwithstanding~~ shall retain the sole right to enforce the obligations of Borrower relating to the Loans and to approve any ~~other~~ amendment, modification or waiver of any provisions of this ~~Section 12.4, no transfer or assignment~~ Agreement. Any Lender selling a participation hereunder shall provide prompt written notice to Borrower and Administrative Agent of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course name of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive controlparticipant. (e) ~~The Agent acting~~ Any Lender or participant may, in connection with the assignment or participation or proposed assignment or participation pursuant to this Section, disclose to the assignee or participant or proposed assignee or participant any information relating to Borrower or the other Consolidated Companies furnished to such Lender by or on behalf of ~~and as agent~~ Borrower or any other Consolidated Company. With respect to any disclosure of confidential, non-public, proprietary information, such proposed assignee or participant shall agree to use the information only for the ~~Borrower~~ purpose of making any necessary credit judgments with respect to this credit facility and not to use the information in any manner prohibited by any law, including without limitation, the securities laws of the United States. The proposed participant or assignee shall ~~maintain at its Payment Office~~ agree in writing, a copy of which shall be furnished to Borrower, not to disclose any of such information except (i) to directors, employees, auditors or counsel to whom it is necessary to disclose such information, each ~~Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation~~ of whom shall be informed of the ~~names and addresses~~ confidential nature of the ~~Lenders~~ information, (ii) in any statement or testimony pursuant to a subpoena or order by any court, governmental body or other agency asserting jurisdiction over such entity, or as otherwise required by law (provided prior notice is given to Borrower and the ~~registered owners of~~ Administrative Agent unless otherwise prohibited by the ~~Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of~~subpoena, order or law), and ~~principal amount~~ (iii) upon the request or demand of ~~the Revolving Credit Loans~~any regulatory agency or authority with proper jurisdiction. The proposed participant or assignee shall further agree to return all documents or other written material and copies thereof received from any Lender, the ~~Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time~~ Administrative Agent or Borrower relating to ~~time. The entries in the Register shall be conclusive, in the absence~~ such confidential information unless otherwise properly disposed of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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~~such entity. (f) Any ~~Non-U.S.~~ Lender may at any time assign all or any portion of its rights in this Agreement and the Notes issued to it to a Federal Reserve Bank; provided that ~~could become completely exempt~~ no such assignment shall release the Lender from ~~withholding~~ any of its obligations hereunder. (g) If (i) any ~~United States federal income taxes~~ Taxes referred to in ~~respect~~ Section 4.7(b) have been levied or imposed so as to require withholdings or deductions by Borrower and payment by Borrower of additional amounts to any Lender as a result thereof, (ii) any Lender shall make demand for payment of any ~~interest due~~ material additional amounts as compensation for increased costs pursuant to ~~such Non-U.S.~~ Section 4.10 or for its reduced rate of return pursuant to Section 4.16, or (iii) any Lender ~~under~~ shall decline to consent to a modification or waiver of the terms of this Agreement or the ~~Notes if~~ other Credit Documents requested by Borrower, then and in such event, upon request from Borrower delivered to such Lender and the ~~Note(s) held~~ Administrative Agent, such Lender shall assign, in accordance with the provisions of Section 11.6(c), all of its rights and obligations under this Agreement and the other Credit Documents to another Lender or an Eligible Assignee selected by Borrower, in consideration for the payment by such ~~Non-U.S.~~ assignee to the Lender ~~were in registered form for United States federal income tax purposes may request~~ of the ~~Borrower (through~~ principal of, and interest on, the ~~Agent)~~outstanding Loans accrued to the date of such assignment, and the ~~Borrower agrees thereupon~~assumption of such Lender's Total Commitment hereunder, ~~to exchange~~ together with any ~~Note(s) held by such Non-U.S. Lender, or to issue~~ and all other amounts owing to such ~~Non-U.S.~~ Lender on under any provisions of this Agreement or the other Credit Documents accrued to the date ~~it becomes a Lender, Qualified Non-U.S. Lender Notes~~of such assignment.

Appears in 1 contract

Samples: Senior Secured Revolving Credit Agreement (Able Telcom Holding Corp)

Benefit of Agreement. ~~(a)~~ This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto, provided that ~~no Credit Party --------~~ the Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of all the Lenders. Each Lender ~~may~~ may, in accordance with applicable law, at any time grant participations in any of its rights hereunder or under any of the Notes to another financial ~~institution~~institution or any fund that regularly invests in bank loans, provided that in the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's ’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, ~~2.6~~ 2.5 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or ~~sold~~sold and the participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participation in amounts owing under this Agreement to the same extent as if the amount of its participation were owing directly to it as a Lender under this Agreement provided that, in purchasing such participation, such participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 12.6(b) as fully as if it were a Lender hereunder, and, provided, further, that no ~~-------- -------~~ Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's ’s participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release ~~any Guarantor~~ all or substantially all of the Subsidiary Guarantors from ~~its~~ their obligations under ~~its Guaranty~~ their respective Guaranties except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral except in accordance with the Credit Documents or (iv) consent to the assignment or transfer by ~~any Credit Party~~ the Borrower of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Pike Holdings, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Ithaca Industries Inc)

Appears in 1 contract

Samples: Credit Agreement (Diamond Offshore Drilling Inc)

Appears in 1 contract

Samples: Credit Agreement (Primedia Inc)

Benefit of Agreement. (a) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided~~ however, that (i) no Credit Party ~~--------~~ may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ the Lenders~~. Each~~ , (ii) although any Lender may ~~at any time~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a "Lender" for all purposes hereunder (and may not transfer or assign all or any portion of its Commitments or Participations in Letters of Credit hereunder except as provided in Section 13.04(b)) and the transferee, assignee or participant, as the case may be, shall not constitute a "Lender" hereunder and (iii) no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (x) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan Maturity Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except (A) in connection with a waiver of applicability of any post- default increase in interest rates and (B) that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (x)) or reduce the principal amount thereof, or increase the amount of the participant's participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitments shall not constitute a change in the terms of such participation, and that an increase in any Commitment or Loan shall be permitted without the consent of any participant if the participant's participation is not increased as a result thereof), (y) consent to the assignment or transfer by the Borrower of any of its rights ~~hereunder~~ and obligations under this Agreement or ~~under any~~ (z) release all or substantially all of the ~~Notes to another financial institution,~~ Collateral under all of the Security Documents (except as expressly provided ~~that~~ in the Credit Documents) securing the Loans hereunder in which such participant is participating. In the case of any such ~~--------~~ participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Commitment, or a mandatory prepayment, shall not constitute a change in the terms of any Commitment), (ii) release any Guarantor from its obligations under its Guaranty except in accordance with the terms thereof, (iii) release all or substantially all of the Collateral or (iv) consent to the assignment or transfer by any Credit Party of any of its rights and obligations under this Agreement or any other Credit Document. (b) Notwithstanding the foregoing, any Lender (or any Lender together with ~~the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld),~~ one or more other Lenders) may (x) ~~any Lender may~~ assign all or a portion of its ~~Loans~~ Revolving Loan Commitment (and related outstanding Obligations hereunder) A Term Loan Commitment (and/or ~~Commitments~~ related outstanding A Term Loans) and/or B Term Loan Commitment (and/or related outstanding B Term Loans) to (i) its parent company and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company or (ii) in the case of any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans and ~~its rights and obligations hereunder to another Lender, and~~ is managed or advised by the same investment advisor of such Lender or by an Affiliate of such investment advisor or (iii) one or more Lenders or (y) ~~any Lender may~~ assign ~~all~~ all, or if less than all, a portion equal to at least (A) in the case of assignments of B Term Loan Commitments (or, after the termination thereof, the related outstanding B Term Loans), $1,000,000 and (B) in the case of assignments of Revolving Loan Commitments and/or A Term Loan Commitments (or, after the termination thereof, the related outstanding A Term Loans), $5,000,000 (or such lesser amount as the Borrower may in its ~~Loans and/or Commitments and its rights and obligations hereunder~~ discretion permit in respect of any such assignment pursuant to this clause (B)) in the aggregate for the assigning Lender or assigning Lenders, to one or more Eligible Transferees (~~including one~~ treating any fund that invests in bank loans and any other fund that invests in bank loans and is managed or ~~more~~ advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that, (i) at such time Schedule I shall be deemed modified to reflect the Revolving Loan Commitments, A Term Loan Commitments and B Term Loan Commitments (or, to the extent such Commitments have terminated, the related outstanding Obligations) of such new Lender and of the existing Lenders, (ii) new Notes will be issued, at the Borrower's expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 1.05 (with appropriate modifications) to the extent needed to reflect the revised Commitments of the respective Tranches (and/or outstanding Loans under such Tranches, as the case may be)~~. Any~~ , (iii) the consent of the Administrative Agent and, so long as no Specified Default is then in existence, the Borrower, shall be required in connection with any assignment pursuant to preceding clause (y) (which consent shall not be unreasonably withheld or delayed), (iv) in the case of assignments of any portion of the Total Revolving Loan Commitment, the consent of the Swingline Lender and each Issuing Lender shall be required in connection with any assignment pursuant to this Section ~~12.4(b~~13.04(b) ~~need~~ (which consents shall not be ~~ratable as among~~ unreasonably withheld or delayed) and (v) the ~~Tranche A Term Loans~~Administrative Agent shall receive at the time of each such assignment, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as it would if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either from the assigning or assignee Lender, the ~~assignee Lender shall pay to the Agent~~ payment of a ~~nonrefundable~~ non-refundable assignment fee of $3,500~~, and at~~ . To the ~~time~~ extent of any assignment pursuant to this Section ~~12.4(b~~13.04(b), ~~(i) Annex 1.1~~ the assigning Lender shall be ~~deemed~~ relieved of its obligations hereunder with respect to its assigned Commitments (it being understood that the indemnification provisions under this Agreement (including, without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06) shall survive as to such assigning Lender). At the time of each assignment pursuant to this Section 13.04(b) to a Person which is not already a Lender hereunder and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the appropriate Internal Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate) described in Section 4.04(b). To the extent that an assignment of all or any portion of a Lender's Commitments and related outstanding Obligations pursuant to Section 1.13 or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 1.10, 1.11 or 4.04 from those being charged by the respective assigning Lender prior to such assignment, then the Borrower shall not be ~~amended~~ obligated to ~~reflect~~ pay such increased costs (although the ~~Commitment~~ Borrower shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective ~~assignee~~ assignment). (~~which shall result in a direct reduction to the Commitment of the assigning Lender~~c) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this ~~clause (b)~~ Agreement shall prevent or prohibit any Lender from pledging its Loans and Notes ~~or Loans~~ hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve ~~Bank. (c) Notwithstanding any other provisions of this Section 12.4~~Bank and, ~~no transfer or assignment~~ with the consent of the ~~interests or obligations of~~ Administrative Agent, any Lender ~~hereunder~~ which is a fund may pledge all or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course portion of its ~~business and that it will make~~ Notes or ~~acquire~~ Loans ~~for its own account in the ordinary course of such business, provided -------- that subject~~ to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent a trustee for the ~~Borrower shall maintain at~~ benefit of investors and in support of its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the Commitment of, and principal amount of the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S. Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due obligation to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notesinvestors.

Appears in 1 contract

Samples: Credit Agreement (Flowers Foods Inc)

Appears in 1 contract

Samples: Debt Agreement (Fairpoint Communications Inc)

Benefit of Agreement. (a) This Agreement ~~shall~~ and the other Credit Documents to which the Borrower is a party will be binding ~~--------------------~~ upon and inure to the benefit of the Borrower, the Administrative Agent, Lenders and ~~be enforceable by the~~ their respective successors and ~~assigns of~~ assigns, except that, the ~~parties hereto, provided that no Credit Party --------~~ Borrower may not assign ~~or transfer any of~~ its rights or and obligations hereunder or thereunder or any interest herein or therein without the prior written consent of all ~~the Lenders~~Lenders and any such attempted assignment shall be void. ~~Each~~ Any Lender may at any time ~~grant participations in~~ pledge its Note or any of other instrument evidencing its rights ~~hereunder or under any of the Notes to another financial institution, provided that in the case of any such -------- participation, the participant shall not have any rights~~ as a Lender under this Agreement to a Federal Reserve Bank, but no such pledge shall release such Lender from its obligations hereunder or grant to such Federal Reserve Bank the rights of a Lender hereunder absent foreclosure of such pledge. (b) From time to time following the Closing Date, each Lender may assign to one or more Eligible Assignees all or any portion of its Commitment and/or Revolving Loans; provided that (i) such assignment, if not to a Lender or an Affiliate of the ~~other Credit Documents (the participant's rights against such Lender in respect of such participation~~ assigning Lender, shall be consented to ~~be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable~~ by the Borrower ~~hereunder shall be determined as if such Lender had not sold such participation, except that~~ at all times other than during the ~~participant shall be entitled to the benefits~~ existence of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no -------- ------- Lender shall transfer, grant or assign any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) waive any Scheduled Repayment or extend the final scheduled maturity of any Loan or Note in which such participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date), or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of the applicability of any post-default increase in interest rates), or reduce the principal amount thereof, or increase such participant's participating interest in any Commitment over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or and by the Administrative Agent (which approval of ~~a mandatory reduction in~~ the ~~Total Commitment, or a mandatory prepayment,~~ Borrower and the Administrative Agent shall not ~~constitute a change in the terms of any Commitment~~be unreasonably withheld or delayed), (ii) ~~release any Guarantor from its obligations under its Guaranty except~~ a copy of a duly signed and completed Assignment and Acceptance, in ~~accordance with~~ the ~~terms thereof~~form specified in the Existing Credit Agreement, shall be delivered to the Administrative Agent and the Borrower, (iii) ~~release all or substantially all~~ except in the case of an assignment (A) to an Affiliate of the ~~Collateral~~ assigning Lender or to another Lender or (ivB) ~~consent to~~ of the ~~assignment or transfer by any Credit Party~~ entire remaining Commitment of ~~any~~ the assigning Lender, the portion of ~~its~~ the Commitment assigned shall be a minimum aggregate principal amount of $10,000,000 and integral multiples thereof, and shall be of a constant and not varying percentage of the assigning Lender's rights and obligations under the respective Loans and Commitments relating thereto subject to the assignment, and (iv) the effective date of any such assignment shall be as specified in the Assignment and Acceptance, but not earlier than the date which is five Business Days after the date the Administrative Agent has received the Assignment and Acceptance. Upon obtaining any consent required as set forth in the prior sentence and payment of the requisite fee described below, the assignee named therein shall be a Lender for all purposes of this ~~Agreement or any other Credit Document. (b) Notwithstanding the foregoing~~Agreement, with the consent of the Agent and the Borrower (each of which consents shall not be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and ~~the Revolving~~ Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall to the extent such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall havetherein set forth and, to the extent of such ~~assignment (unless otherwise provided therein)~~assignment, the ~~same rights and benefits as it would if it were such~~ assigning ~~Lender. Each assignment pursuant to this Section 12.4(b)~~ Lender shall be ~~effected~~ released from its further obligations under this Agreement. The Borrower agrees that it shall execute and deliver upon request (against delivery by the assigning Lender ~~and~~ to the ~~assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event~~ Borrower of any Note) to such assignee Lender, one or more Notes evidencing such assignee Lender's Loans, and to the assigning Lender, if requested, one or more Notes evidencing Loans under any Commitment retained by the assigning Lender. The Administrative Agent's consent to any assignment shall not be deemed to a constitute any representation or warranty by any Administrative Agent-Related Person ~~not previously~~ as to any matter. For purposes hereof, each mutual fund that is an Affiliate of a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be ~~amended to reflect~~ a single Eligible Assignee, whether or not such fund is managed by the ~~Commitment~~ same fund manager as other mutual funds that are Affiliates of the ~~respective assignee (which shall result in a direct reduction to the Commitment of the assigning~~ same Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted if such transfer, assignment or grant would require the Borrower or Holdings to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became a Lender pursuant to an assignment permitted by this Section 12 will, upon its becoming party to this Agreement, represent that it is a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that subject to the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held by such Lender shall at all times be within its exclusive control. (e) The Administrative Agent ~~acting on behalf of and as agent for the Borrower~~ shall maintain at its ~~Payment Office~~ address referred to in Schedule 8.1 a copy of each Assignment ~~Agreement~~ and Acceptance delivered to and accepted by it ~~(as required hereby)~~ and a register ~~(the "Register")~~ for ~~--------~~ the recordation of the names and addresses of the Lenders and the ~~registered owners of the Qualified Non-U.S. Lender Notes (including Qualified Non-U.S. Lender Noteholders) and the~~ Commitment of, and principal amount of the ~~Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans and the Additional Tranche B Term Loans~~ advances owing to, each Lender from time to ~~time~~time (the "Register"). The entries in the Register shall be ~~conclusive~~conclusive and binding for all purposes, ~~in the absence of~~ absent manifest error, and the Borrower, the Administrative Agent and the Lenders ~~may~~ shall treat each Person whose name is recorded in the Register as ~~the owner of the Loan or Qualified Non-U.S.~~ a Lender ~~Note recorded therein~~ hereunder for all purposes of this Agreement~~, notwithstanding any notice to the contrary~~. 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. (fd) ~~Any Non-U.S.~~ After receipt of a completed Assignment and Acceptance, and receipt of an assignment fee of $3,500 (including in the case of assignments to Affiliates of assigning Lenders), the Administrative Agent shall, promptly following the effective date thereof, provide to the Borrower and Lenders a revised Schedule 8.1 giving effect thereto. (e) Each Lender ~~that could become completely exempt~~ may from ~~withholding~~ time to time, without the consent of any ~~United States federal income taxes~~ other Person, grant participations to one or more other Person (including another Lender) all or any portion of its Commitment and/or Revolving Loans; provided, however, that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the participating banks or other financial institutions shall not be a Lender hereunder for any purpose except, if the participation agreement so provides, for the purposes of Section 3 (but only to the extent that the cost of such benefits to the Borrower does not exceed the cost which the Borrower would have incurred in respect of such Lender absent the participation) and subject to Sections 3.7 and 8.2, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement, (v) the participation agreement shall not restrict an increase in the combined Commitments or in the granting Lender's Commitment, so long as the amount of the participation interest is not increased, and (vi) the consent of the holder of such participation interest shall not be required for amendments or waivers of provisions of the Credit Documents; provided, however, that the assigning Lender may, in any agreement with a participant, give such participant the right to consent to any matter which (A) extends the Termination Date or any other date upon which any payment of ~~any interest~~ money is due to such ~~Non-~~participant, (B) reduces the rate of interest owing to such participant, any fee or any other monetary amount owing to such participant, or (C) reduces the amount of any installment of principal owing to such participant. Any Lender that sells a participation to any Person that is not a U.S. ~~Lender under this Agreement or the Notes if the Note(s) held~~ Person shall include in its participation agreement with such Person a covenant by such ~~Non-U.S.~~ Person that such Person will comply with the provisions of Section 3.01(c) of the Existing Credit Agreement as if such Person were a Lender ~~were in registered form for United States federal income tax purposes may request~~ and provide that the ~~Borrower (through the Agent),~~ Administrative Agent and the Borrower ~~agrees thereupon, to exchange any Note(s) held by~~ shall be third party beneficiaries of such ~~Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes~~covenant.

Appears in 1 contract

Samples: Bridge Credit Agreement (Sabre Holding Corp)

Appears in 1 contract

Samples: Credit Agreement (Tristar Aerospace Co)

Benefit of Agreement. (a) (A) This Agreement shall be binding ~~--------------------~~ upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided, ~~provided that~~ however, no ~~Credit Party --------~~ Borrower may assign or transfer any of its ~~rights~~ rights, obligations or ~~obligations~~ interest hereunder or under any other Credit Document without the prior written consent of ~~all~~ the ~~Lenders. Each~~ Lenders and, provided further, that, although any Lender may ~~at any time~~ transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its ~~rights~~ Commitments or outstanding Loans hereunder except as provided in Sections 1.13 and 12.04(b)) and the transferee, assignee or ~~under any of~~ participant, as the ~~Notes to another financial institution~~case may be (each, a “Lender Participant”), shall not constitute a “Lender” hereunder and, provided that in the case of any such -------- participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant's rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation, except that the participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.6 and 4.4 of this Agreement to the extent that such Lender would be entitled to such benefits if the participation had not been entered into or sold, and, provided, further, that no ~~-------- -------~~ Lender shall ~~transfer,~~ transfer or grant ~~or assign~~ any participation under which the ~~participant~~ Lender Participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except as (and to the extent) provided in sub-clause (B) of this Section 12.04(a) or to the extent such amendment or waiver would (i) ~~waive any Scheduled Repayment or~~ extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Loan ~~or Note~~ Maturity Date) in which such ~~participant~~ Lender Participant is participating (it being understood that any waiver of the application of any prepayment or the method of any application of any prepayment to, the amortization of the Term Loans shall not constitute a waiver of any Scheduled Repayment or an extension of the final maturity date)participating, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of ~~the~~ applicability of any post-default increase in interest rates), ) (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 12.07(a) shall not constitute a reduction in the rate of interest or Fees payable hereunder) or reduce the principal amount thereof, or increase ~~such participant's participating interest in any Commitment~~ the amount of the Lender Participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total ~~Commitment, or a mandatory prepayment,~~ Commitment shall not constitute a change in the terms of such participation, and that an increase in any ~~Commitment~~Commitment or Loan shall be permitted without the consent of any Lender Participant if the Lender Participant’s participation is not increased as a result thereof), (ii) ~~release~~ consent to the assignment or transfer by any ~~Guarantor from~~ Borrower of any of its rights and obligations under ~~its Guaranty except in accordance with the terms thereof,~~ this Agreement or (iii) release all or substantially all of the Collateral or under all of the Security Documents (ivexcept as expressly provided in the Credit Documents) ~~consent to~~ supporting the ~~assignment or transfer by any Credit Party~~ Loans in which such Lender Participant is participating. In the case of any ~~of its~~ such participation, the Lender Participant shall not have any rights ~~and obligations~~ under this Agreement or any of the other Credit ~~Document~~Documents (the Lender Participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the Lender Participant relating thereto) and all amounts payable by any Borrower hereunder shall be determined as if such Lender had not sold such participation. (bB) Notwithstanding the ~~foregoing~~preceding Section 12.04(a)(A) or the definition of Required Lenders, ~~with~~ any Lender Participant that is a Farm Credit Lender that (i) has purchased a participation in a minimum amount of $10,000,000, (ii) has been designated as a voting participant (a “Voting Lender Participant”) in a notice (a “Voting Lender Participant Notice”) sent by the relevant Lender to the Administrative Agent and (iii) receives, prior to becoming a Voting Lender Participant, the consent of the Administrative Agent and ~~the Borrower~~ Silgan (each ~~of which consents shall not~~ such consent to be unreasonably withheld), (x) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to another Lender, and (y) any Lender may assign all or a portion of its Loans and/or Commitments and its rights and obligations hereunder to one or more Eligible Transferees (including one or more Lenders). Any assignment pursuant to this Section 12.4(b) need not be ratable as among the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Commitments of the assigning Lender except as provided in the next sentence. No assignment pursuant to the immediately preceding sentence (i) shall required only to the extent ~~such assignment represents an assignment to an institution other than one or more Lenders hereunder, be in an aggregate amount less than $5,000,000 unless the entire Commitment~~ and Loans of the assigning Lender are so assigned or (ii) shall be effective if the result thereof is that any Lender has a different percentage interest in the Initial Tranche A Term Facility than it has in the Revolving Facility. If any Lender so sells or assigns all or a part of its rights hereunder or under the Notes, any reference in this Agreement or the Notes to such assigning Lender shall thereafter refer to such Lender and to the respective assignee to the extent of their respective interests and the respective assignee shall have, to the extent of such assignment (unless otherwise provided therein), the same rights and benefits as circumstances it would ~~if it were such assigning Lender. Each assignment pursuant to this Section 12.4(b) shall~~ be effected by the assigning Lender and the assignee Lender executing an Assignment Agreement substantially in the form of Exhibit D (appropriately completed). In the event of any such assignment to a Person not previously a Lender hereunder, either the assigning or the assignee Lender shall pay to the Agent a nonrefundable assignment fee of $3,500, and at the time of any assignment pursuant to this Section 12.4(b), (i) Annex 1.1 shall be deemed to be amended to reflect the Commitment of the respective assignee (which shall result in a direct reduction to the Commitment of the assigning Lender) and of the other Lenders, and (ii) if any such assignment occurs after the Initial Borrowing Date, the Borrower will issue new Notes to the respective assignee and to the assigning Lender in conformity with the requirements of Section 1.5. Each Lender and the Borrower agree to execute such documents (including without limitation amendments to this Agreement and the other Credit Documents) as shall be necessary to effect the foregoing. Nothing in this clause (b) shall prevent or prohibit any Lender from pledging its Notes or Loans to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (c) Notwithstanding any other provisions of this Section 12.4, no transfer or assignment of the interests or obligations of any Lender hereunder or any grant of participation therein shall be permitted required if such ~~transfer, assignment or grant would require the Borrower or Holdings~~ Voting Lender Participant were to file a registration statement with the SEC or to qualify the Loans under the "Blue Sky" laws of any State. (d) Each Lender initially party to this Agreement hereby represents, and each Person that became become a Lender pursuant to an assignment ~~permitted by this~~ in accordance with Section ~~12 will~~12.04(b)), ~~upon its becoming party~~ shall be entitled to ~~this Agreement, represent that it is~~ vote as if such Voting Lender Participant were a commercial lender, other financial institution or other "accredited" investor (as defined in SEC Regulation D) which makes or acquires loans in the ordinary course of its business and that it will make or acquire Loans for its own account in the ordinary course of such business, provided -------- that Lender on all matters subject to ~~the preceding clauses (a) and (b), the disposition of any promissory notes or other evidences of or interests in Indebtedness held~~ a vote by such Lender shall at all times be within its exclusive control. (e) The Agent acting on behalf of and as agent for the Borrower shall maintain at its Payment Office a copy of each Assignment Agreement delivered to it (as required hereby) and a register (the "Register") for -------- the recordation of the names and addresses of the Lenders and the ~~registered owners~~ voting rights of the ~~Qualified Non~~selling Lender shall be correspondingly reduced on a dollar-~~U.S.~~ for-dollar basis. Each Voting Lender ~~Notes (including Qualified Non-U.S.~~ Participant Notice shall include, with respect to each Voting Lender ~~Noteholders)~~ Participant, the information that would be included by a prospective Lender in an Assignment and Assumption Agreement. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Lender Participant in Schedule XI shall be a Voting Participant without delivery of a Voting Lender Participant Notice and without the prior written consent of Silgan and the ~~Commitment of~~Administrative Agent. The selling Lender and the Voting Lender Participant shall notify the Administrative Agent and Silgan within three (3) Business Days of any termination, ~~and principal~~ reduction or increase of the amount of ~~the Revolving Credit Loans, the Initial Tranche A Term Loans, the Initial Tranche B Term Loans, the Additional Tranche A Term Loans~~ such participation. Silgan and the ~~Additional Tranche B Term Loans owing to, each~~ Administrative Agent shall be entitled to conclusively rely on information contained in the Voting Lender ~~from time to time~~Participant Notices and all other notices delivered pursuant hereto. The ~~entries in~~ voting rights of each Voting Lender Participant are solely for the ~~Register~~ benefit of such Voting Lender Participant and shall ~~be conclusive, in the absence~~ not inure to any assignee or participant of ~~manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as the owner of the Loan or Qualified Non-U.S.~~ such Voting Lender Note recorded therein for all purposes of this Agreement, notwithstanding any notice to the contrary. 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 noticeParticipant. (f) Any Non-U.S. Lender that could become completely exempt from withholding of any United States federal income taxes in respect of payment of any interest due to such Non-U.S. Lender under this Agreement or the Notes if the Note(s) held by such Non-U.S. Lender were in registered form for United States federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any Note(s) held by such Non-U.S. Lender, or to issue to such Non-U.S. Lender on the date it becomes a Lender, Qualified Non-U.S. Lender Notes.

Appears in 1 contract

Samples: Credit Agreement (Silgan Holdings Inc)

Common use of Benefit of Agreement Clause in Contracts