AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company and for purposes of this section, the Agent is using the funds of the Agent. (b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof. 2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations. 3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Company. 4. The Agent shall, after receipt of any interest and fees earned under this Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent and; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interest. (a) Each Obligor acknowledges that the Lenders may sell participations, in an amount of not less than $5,000,000 in the loans and extensions of credit made and to be made to each Company hereunder. Each Obligor further acknowledges that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement. (b) Each Obligor authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor and its affiliates which has been delivered to such Lender by or on behalf of such Obligor pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor in connection with such Lender's credit evaluation of such Obligor and its affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT 6. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is so obligated to that other Lender. 7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any Obligor, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement. 8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders. 9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENT
Appears in 1 contract
Samples: Loan and Security Agreement (Patterson Uti Energy Inc)
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company the Companies and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company the Companies and for purposes of this section, Section 13 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company the Companies that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each Company the Companies a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any Company the Companies without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the Companies the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
213.2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Company.
4. The Agent shall, after receipt of any interest and fees earned under this Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent and; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interest.
(a) Each Obligor acknowledges that the Lenders may sell participations, in an amount of not less than $5,000,000 in the loans and extensions of credit made and to be made to each Company hereunder. Each Obligor further acknowledges that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement.
(b) Each Obligor authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor and its affiliates which has been delivered to such Lender by or on behalf of such Obligor pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor in connection with such Lender's credit evaluation of such Obligor and its affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT
6. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is so obligated to that other Lender.
7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any Obligor, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement.
8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENTthe
Appears in 1 contract
Samples: Financing Agreement (Sun Coast Industries Inc /De/)
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each the Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each the Company and for purposes of this section, Section 13 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any the Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each the Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any the Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any the Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
213.2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
313.3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each the Company.
413.4. The Agent shall, after receipt of any interest and fees earned under this Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Collateral Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement8.9 hereof; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent andAgent; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each the Company's interestinterest payments; (c) its pro rata portion of all principal repaid on the Term Loan; and (d) interest on the Term Loan computed at the rate and as provided for in Section 8 of this Agreement.
(a) Each Obligor acknowledges The Company acknowledge that the Lenders may sell participations, in an amount of not less than $5,000,000 participations in the loans and extensions of credit made and to be made to each the Company hereunder. Each Obligor The Company further acknowledges acknowledge that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement14.10 hereof.
(b) Each Obligor The Company authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREETransferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Company and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Company in connection with such Lender's credit evaluation of such Obligor the Company and its their affiliates prior to entering into this Agreement.
13.6. UTI - LOAN AND SECURITY AGREEMENT
6. Each The Company hereby agrees agree that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such the Company is so obligated to that other Lender.
713.7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by the Company or any Obligorone of them, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such the Company or from the proceeds of Collateral. The provisions of this paragraph Section 13.7 shall not apply to any suits, actions, proceedings or claims that (xa) predate the date of this Agreement or (yb) are based on transactions, actions or omissions that predate the date of this Agreement.
813.8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor the Company held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (xa) the occurrence of an Event of Default and so long as the same is continuing and (yb) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor the Company authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
913.9. CITBC Each Lender shall have the right at any time to assign to one or more Eligible Assigneescommercial banks, commercial finance lenders or other financial institutions all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does notAgreement (including, prior to without limitation, its obligations under the execution Line of such Assignment AgreementCredit, execute and deliver to the Agent Term Loan and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligationsRevolving Loans. Upon execution of an Assignment and Transfer Agreement, (ia) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC such Lender as the case may be hereunder and (iib) CITBC such Lender shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor The Company shall, if necessary, execute any documents reasonably required to effectuate the assignments. No Lender other Lender than CITBC may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENT.
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each the Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each the Company and for purposes of this section, Section 11 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any the Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each the Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any the Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any the Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
2. 11.2 On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. 11.3 The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each the Company.
4. 11.4 The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Lenders: (a) Lenders their pro rata portion of all fees; , provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management fees set forth in the Fee or Letter, Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent and; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interestLibor Processing Fee.
(a) Each Obligor The Company acknowledges that the Lenders Lenders, with the consent of the Agent, which consent shall not be unreasonably withheld, may sell participations, in an amount of not less than $5,000,000 participations in the loans and extensions of credit made and to be made to each the Company hereunder (the "Participants"), provided, however, that a Participant may not so purchase a participation in an amount less than $5,000,000 or the then aggregate amount of such Lender's interest in the loans and advances and extensions of credit hereunder. Each Obligor The Company further acknowledges that in doing so, the Lenders may grant to such participants Participants certain rights which would require the participantParticipant's consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided that the consent of any such participant Participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement12.10 hereof.
(b) Each Obligor The Company authorizes each Lender to disclose to any participant Participant or purchasing lender (each, a "TRANSFEREETransferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Company and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Company in connection with such Lender's credit evaluation of such Obligor the Company and its affiliates prior to entering into this Agreement, provided, however, that prior to such disclosure to a then or potential Participant the Lender must first obtain from the then or potential Participant a confidentiality agreement in form and substance similar to the confidentiality paragraph of this Financing Agreement.
11.6 The Company has made and will, from time to time, make available to the Agent and/or the Lenders certain financial and other business information (the "Confidential Information") relating to its business. UTI - LOAN AND SECURITY AGREEMENTBy their signatures hereto or to the Assignment and Transfer Agreement, the Agent and each Lender agree to maintain the confidentiality of all Confidential Information, and to disclose such information only (a) to officers, directors or employees of such Agent or Lender and their legal or financial advisors, in each case to the extent necessary to carry out this Financing Agreement and in the case of CITBC, to CIT Group Holdings, Inc., or CIT Group, Inc., and in the case of any other Lender, to such other Lender's parent organization, but only, in the case of all of the foregoing Persons referred to in this clause (a), after the Agent or the Lender, as the case may be, has advised each such Person to maintain the confidentiality of the Confidential Information, (b) to any other Person to the extent the disclosure of such information to such Person is required in connection with the examination of a Lender's records by appropriate authorities, pursuant to court order, subpoena or other legal process or otherwise as required by law or regulation, and (c) to Transferees or potential Transferees but only after such Transferees or potential Transferees have executed a written confidentiality agreement substantially in the form of this paragraph. The Lenders, the Agent, Transferees and potential Transferees shall not be required to maintain the confidentiality of any portion of the Confidential Information which (a) is known by such Person or its agents, advisors or representatives prior to disclosure or (b) becomes generally available to the public provided that the disclosure of such Confidential information does not violate a confidentiality agreement of which the Transferees, potential Transferees, the Agent or the Lender, as the case may be, has actual knowledge.
6. Each 11.7 The Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for for, the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other another Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such the Company is so obligated to that other Lender.
7. 11.8 In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any Obligorthe Company, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under under, this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such the Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any (i) suits, actions, proceedings or claims that (x) predate the date of are unrelated, directly or indirectly, to this Agreement Financing Agreement, or (yii) are based on transactionscosts, actions fees, expenses or omissions that predate disbursements resulting solely from the date gross negligence or willful misconduct of this Agreementthe Agent or any Lender.
8. 11.9 Each of the Lenders agrees with each other Lender that any money or assets of each Obligor the Company held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor the Company authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. 11.10 CITBC shall have the right at any time to assign to one or more Eligible Assigneescommercial banks, commercial finance lenders or other financial institutions all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this AgreementFinancing Agreement (including, without limitation, under its obligations the Line of Credit, the Revolving Loans and its rights and obligations with respect to Letters of Credit). In any event, CITBC shall retain for its own account an amount at least equal to a pro-rata share equal to the highest pro-rata share held by any Participant, and in no event less than 20% of the amount of the Obligations ("CITBC Hold Position"); provided provided, however, that no such assignment CITBC Hold Position shall cease while there is then an Event of Default and only until such Event of Default is waived. Should CITBC during an Event of Default assign additional interests, then the CITBC Hold Position shall be made to any Person that does not, prior to the execution remaining amount of CITBC's position if and when such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and Event of Default is other exempt from IRS interest withholding obligationswaived. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Financing Agreement. Each Obligor The Company shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest, in whole or in part, in the loans and advances and extensions of credit hereunder without i) the prior written consent of the Agent, which consent shall not be unreasonably withheld; ii) the payment to the Agent (solely for the Agent's account) by the current or prospective Lender of a $5,000.00 fee for processing the assignment; and (iii) if the Transferee is a Foreign Lender (as defined in Section 13.5 hereof), such Foreign Lender first complies with the provisions of Section 13.5 hereof provided, however, that the immediately preceding clauses (i) and (ii) hereof shall not apply in connection with any assignment by a Lender to an affiliate of such Lender, or in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of a Lender. Additionally, no other Lender shall assign such Lender's interest in the loans and advances and extensions of credit hereunder without (or any portion thereof) unless the prior written consent of the Agent, and such assignment, if consented to, shall interest to be in amounts of so assigned is either not less than $5,000,0005,000,000 or all of such Lender's entire interest in the loans and advances and extensions of credit hereunder. UTI - LOAN AND SECURITY AGREEMENTNotwithstanding anything to the contrary herein contained, prior to any such assignment and/or the disclosure of the Confidential Information, such Transferee, actual or potential, shall execute a confidentiality agreement in form and substance substantially similar to the confidentiality paragraph of this Financing Agreement.
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each the Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each the Company and for purposes of this section, Section 13 the Agent is using the funds of the Agent.
(b) Each Lender shall, before 11:00 A.M. (Pacific time) on the date of such advance, make available to the Agent at the Agent's bank account in Los Angeles, California, in same day funds, such Lender’s portion of such advance. Advances shall be made by the Lenders ratably in accordance with their several Commitments. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Section 2, the Agent will make such funds available to the Company. Unless the Agent shall have been notified in writing by any Lender prior to any advance to any the Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each the Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Each Lender's share of such borrowing is not in fact made available obligation to make the Agent by such Lender on the Settlement Date, settlements to the Agent shall be entitled to recover absolute and unconditional and shall not be affected by any circumstance, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which any such amount with interest thereon at Lender or the rate per annum applicable to Revolving Loans hereunder, on demand, from any Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Company.
4. The Agent shall, after receipt of any interest and fees earned under this Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent and; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interest.
(a) Each Obligor acknowledges that the Lenders may sell participations, in an amount of not less than $5,000,000 in the loans and extensions of credit made and to be made to each Company hereunder. Each Obligor further acknowledges that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement.
(b) Each Obligor authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor and its affiliates which has been delivered to such Lender by or on behalf of such Obligor pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor in connection with such Lender's credit evaluation of such Obligor and its affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT
6. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is so obligated to that other Lender.
7. In the event that the Agent, the Lenders Company, any other Lender or any one of them is sued or threatened with suit by other person for any Obligor, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that reason whatsoever; (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement.
8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (xii) the occurrence or continuance of an Event of Default and so long as or event that would constitute an Event of Default but for the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, requirement that notice be given or in the possession of such Lender the Obligations due such Lenders.
9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENTelapse;
Appears in 1 contract
Samples: Financing Agreement (Aquila Inc)
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company the Companies and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company the Companies and for purposes of this section, Section 11 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company the Companies that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each Company the Companies a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to as appropriate, Revolving Loans or the Term Loan hereunder, on demand, from any Company the Companies without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the Companies the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
211.2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Revolving Lenders shall have their proportionate share of all outstanding ObligationsObligations in respect of the Revolving Loans and Letters of Credit and the Term Lenders shall have their proportionate share of all outstanding Obligations in respect of the Term Loans.
311.3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each the Company.
411.4. The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Term Lenders and the Revolving Lenders: (a) , as appropriate, their pro rata portion of all such interest and fees; , provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management fees set forth in the Fee or Letter, Documentation Fees or the fees provided for Libor Processing Fee except as may have otherwise been agreed in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with writing between the Agent and; (b) interest computed at and the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interestLenders.
(a) Each Obligor Company acknowledges that the Lenders Lenders, with the consent of the Agent, which consent shall not be unreasonably withheld, may sell participations, in an amount of not less than $5,000,000 participations in the loans and extensions of credit made and to be made to each Company the Companies hereunder (the "Participants"), provided, however, that a Participant may not so purchase a participation in an amount less than $5,000,000 or the then aggregate amount of such Lender's interest in the loans and advances and extensions of credit hereunder. Each Obligor Company further acknowledges that in doing so, the Lenders may grant to such participants Participants certain rights which would require the participantParticipant's consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided that the consent of any such participant Participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement12.10 hereof.
(b) Each Obligor The Company authorizes each Lender to disclose to any participant Participant or purchasing lender (each, a "TRANSFEREETransferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Companies and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Companies pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Companies in connection with such Lender's credit evaluation of such Obligor either Company and its affiliates prior to entering into this Agreement or the Prior Financing Agreement, provided, however, that prior to such disclosure to a then or potential Participant the Lender must first obtain from the then or potential Participant a confidentiality agreement in form and substance similar to the confidentiality paragraph of this Financing Agreement.
11.6. UTI - LOAN AND SECURITY AGREEMENTEach Company has made and will, from time to time, make available to the Agent and/or the Lenders certain financial and other business information (the "Confidential Information") relating to its business. By their signatures hereto or to the Assignment and Transfer Agreement, the Agent and each Lender agree to maintain the confidentiality of all Confidential Information, and to disclose such information only (a) to officers, directors or employees of such Agent or Lender and their legal or financial advisors, in each case to the extent necessary to carry out this Financing Agreement and in the case of CITBC, to CIT Group Holdings, Inc., or CIT Group, Inc., and in the case of any other Lender, to such other Lender's parent organization, but only, in the case of all of the foregoing Persons referred to in this clause (a), after the Agent or the Lender, as the case may be, has advised each such Person to maintain the confidentiality of the Confidential Information, (b) to any other Person to the extent the disclosure of such information to such Person is required in connection with the examination of a Lender's records by appropriate authorities, pursuant to court order, subpoena or other legal process or otherwise as required by law or regulation, and (c) to Transferees or potential Transferees but only after such Transferees or potential Transferees have executed a written confidentiality agreement substantially in the form of this paragraph. The Lenders, the Agent, Transferees and potential Transferees shall not be required to maintain the confidentiality of any portion of the Confidential Information which (a) is known by such Person or its agents, advisors or representatives prior to disclosure or (b) becomes generally available to the public provided that the disclosure of such Confidential information does not violate a confidentiality agreement of which the Transferees, potential Transferees, the Agent or the Lender, as the case may be, has actual knowledge.
611.7. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit or the Term Loan, as applicable, and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for for, the failure of any Lender to make available its portion of the Line of CreditCredit or the Term Loan. Further, should any Lender refuse to make available its portion of the Line of CreditCredit or the Term Loans, then the other another Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is the Companies are so obligated to that other Lender.
711.8. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any Obligoreither Company, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under under, this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company the Companies or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any (i) suits, actions, proceedings or claims that (x) predate the date of are unrelated, directly or indirectly, to this Agreement Financing Agreement, or (yii) are based on transactionscosts, actions fees, expenses or omissions that predate disbursements resulting solely from the date gross negligence or willful misconduct of this Agreementthe Agent or any Lender.
811.9. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor either Company held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor Company authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
911.10. CITBC shall have the right at any time to assign to one or more Eligible Assigneescommercial banks, commercial finance lenders or other financial institutions all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this AgreementFinancing Agreement (including, without limitation, under its obligations the Line of Credit, the Revolving Loans, the Term Loan, and its rights and obligations with respect to Letters of Credit). In any event, CITBC shall retain for its own account an amount at least equal to a pro-rata share equal to the highest pro-rata share held by any Participant (other than the pro-rata share held by Bank of America, N.A.), and in no event less than 20% of the amount of the Obligations ("CITBC Hold Position"); provided provided, however, that no such assignment CITBC Hold Position shall cease while there is then an Event of Default and only until such Event of Default is waived. Should CITBC during an Event of Default assign additional interests, then the CITBC Hold Position shall be made to any Person that does not, prior to the execution remaining amount of CITBC's position if and when such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and Event of Default is other exempt from IRS interest withholding obligationswaived. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Financing Agreement. Each Obligor Company shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest, in whole or in part, in the loans and advances and extensions of credit hereunder without i) the prior written consent of the Agent, which consent shall not be unreasonably withheld; ii) the payment to the Agent (solely for the Agent's account) by the current or prospective Lender of a $5,000 fee for processing the assignment; and (iii) if the Transferee is a Foreign Lender (as defined in Section 13.5 hereof), such Foreign Lender first complies with the provisions of Section 13.5 hereof provided, however, that the immediately preceding clauses (i) and (ii) hereof shall not apply in connection with any assignment by a Lender to an affiliate of such Lender, or in connection with any merger, consolidation, sale, transfer, or other disposition of all or any substantial portion of the business or loan portfolio of a Lender. Additionally, no other Lender shall assign such Lender's interest in the loans and advances and extensions of credit hereunder without (or any portion thereof) unless the prior written consent of the Agent, and such assignment, if consented to, shall interest to be in amounts of so assigned is either not less than $5,000,0005,000,000 or all of such Lender's entire interest in the loans and advances and extensions of credit hereunder, except that such minimum assignment amount does not apply to an assignment of a Term Lender's interest in the Term Loan if, and to the extent that, the assignment is necessary to ensure that the assigning Term Lender's position in the Term Loan is not greater than CITBC's position in the Term Loan. UTI - LOAN AND SECURITY AGREEMENTNotwithstanding anything to the contrary herein contained, prior to any such assignment and/or the disclosure of the Confidential Information, such Transferee, actual or potential, shall execute a confidentiality agreement in form and substance substantially similar to the confidentiality paragraph of this Financing Agreement.
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each the Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each the Company and for purposes of this section, Section 13 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any the Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each the Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any the Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any the Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
2. 13.2 On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. 13.3 The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each the Company.
4. 13.4 The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; , provided, however, that the Lenders (other than CITBC CIT in its role as the Agent) shall (xi) not share in the Administrative Collateral Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this AgreementParagraph 8.12; and (yii) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent andAgent; (b) interest computed at the rate and as provided for in Section 8 of this Financing Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each the Company's interestinterest computed at the rate and as provided for in Section 8 of this Financing Agreement.
(a) Each Obligor The Company acknowledges that the Lenders with the prior written consent of the Agent may sell participations, in an amount of not less than $5,000,000 participation in the loans and extensions of credit made and to be made to each the Company hereunder. Each Obligor The Company further acknowledges that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided 52 that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement14.10 hereof.
(b) Each Obligor The Company authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Company and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Company in connection with such Lender's credit evaluation of such Obligor the Company and its their affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT, provided that such Transferee agrees to hold such information in confidence in the ordinary course of its business.
6. Each 13.6 The Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such the Company is are so obligated to that other Lender.
7. 13.7 In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by the Company or any Obligorone of them, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such the Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Financing Agreement or (y) are based on transactions, actions or omissions that predate the date of this Financing Agreement.
8. 13.8 Each of the Lenders agrees with each other Lender that any money or assets of each Obligor the Company held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizesthe Company authorize, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. CITBC 13.9 The Agent shall have the right at any time to assign to one or more Eligible Assigneescommercial banks, commercial finance lenders or other financial institutions all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made Financing Agreement (including, without limitation, its obligations under the Line of Credit, the Revolving Loans and its rights and obligations with respect to any Person that does not, prior to the execution Letters of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligationsCredit). Upon execution of an Assignment and Transfer Agreement, (ia) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC the Agent as the case may be hereunder and (iib) CITBC the Agent shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Financing Agreement. Each Obligor The Company shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent. In the event that the Agent consents to any such assignment by any other Lenders (i) the amount being assigned shall in no event be less than the lesser of (x) $5,000,000 or (y) the entire interest of such Lender hereunder, and (ii) such assignment, if consented to, assignment shall be in amounts of not less than a pro-rata portion of all of such assigning Lender's loans and commitments hereunder and (iii) the parties to such assignment shall execute and deliver to the Agent an Assignment and Transfer Agreement, and, at the Agent's election, a processing and recording fee of $5,000,000. UTI - LOAN AND SECURITY AGREEMENT3,000 payable by the Company to the Agent for its own account.
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company the Companies and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company the Companies and for purposes of this section, Section 14 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company the Companies that such Lender will not make the amount which would constitute its share such Lender's Ratable Portion of the such borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount Ratable Portion available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each Company the Companies a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection clause shall be conclusive, absent manifest error. If such Lender's share of such borrowing Ratable Portion is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any Company the Companies without prejudice to any rights which the Agent or the Companies may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion Ratable Portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the Companies the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders Lender will not advance its ratable portion Ratable Portion thereof.
2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share Ratable Portion of all outstanding Obligations.
3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Companythe Companies.
4. The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Lenderseach Lender: (a) their pro rata portion its Ratable Portion of all fees; , provided, however, that the Lenders (i) no Lender (other than CITBC in its role as the AgentCITBC) shall (x) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this AgreementAgent Fee; and (yii) each Lender shall receive their its share of the Letter of Credit Guaranty Fee, the Revolving Line of Credit Fee, and the Loan Facility Fee in accordance with their respective its agreements with the Agent andcontained in the Assignment and Transfer Agreement executed by such Lender; (b) interest computed at on the rate and as provided for in Section 8 of this Agreement Revolving Loans on all outstanding amounts advanced by the Lenders such Lender on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to such Lender of the Lenders of each CompanyCompanies's interest, computed at the rate provided for in Section 8 hereof less such amounts as may be agreed between such Lender and the Agent in the Assignment and Transfer Agreement executed by such Lender; (c) its pro rata portion of all principal repaid on the Term Loans; and (d) interest on the Term Loans computed at the rate provided for in Section 8 hereof less such amounts as may be agreed between such Lender and the Agent in the Assignment and Transfer Agreement executed by such Lender.
(a) Each Obligor acknowledges The Companies acknowledge that the Lenders may sell participations, in an amount of not less than $5,000,000 participations in the loans and extensions of credit made and to be made to each Company the Companies hereunder. Each Obligor The Companies further acknowledges acknowledge that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14Xxxxxxx 00, Paragraph 10 of this AgreementXxxxxxxxx 00 xxxxxx.
(bx) Each Obligor authorizes The Companies authorize each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREETransferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Companies and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Companies pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Companies in connection with such Lender's credit evaluation of such Obligor the Companies and its their affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT.
(c) Each Lender and the Agent agree to keep information obtained by it pursuant hereto confidential in accordance with such Lender's or the Agent's, as the case may be, customary practices and agrees that it will only use such information in connection with the transactions contemplated by this Agreement and not disclose any of such information other than (a) to such Lender's or the Agent's, as the case may be, employees, representatives, agents and affiliates who are or are expected to be involved in the evaluation of such information in connection with the transactions contemplated by this Agreement and who are advised of the confidential nature of such information, (b) to the extent such information presently is or hereafter becomes available to such Lender or the Agent, as the case may be, on a non-confidential basis from a source other than the Companies, (c) to the extent disclosure is required by law, regulation or judicial order or requested or required by bank regulators or auditors, or (d) to assignees or participants or potential assignees or participants who agree in writing for the benefit of the Companies to be bound by the provisions of this sentence.
6. Each Company The Companies hereby agrees agree that each Lender is solely responsible for its portion Ratable Portion of the Revolving Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available available, its portion Ratable Portion of the Line of Credit. Further, should any Lender refuse to make available its portion Ratable Portion of the Revolving Line of Credit, then the any other Lender may, but without obligation to do so, increase, unilaterally, its portion Ratable Portion of the Revolving Line of Credit in which event such Company is the Companies are so obligated to that other Lender.
7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by the Companies or any Obligorone of them, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the LendersLenders ratably. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement shall be shared proportionately ratably between and among the Lenders to the extent not reimbursed by such Company the Companies or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement.
8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENTof
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company and for purposes of this section, the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Company.. UTI - AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT 84
4. The Agent shall, after receipt of any interest and fees earned under this Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent and; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interest.
(a) Each Obligor acknowledges that the Lenders may sell participations, in an amount of not less than $5,000,000 in the loans and extensions of credit made and to be made to each Company hereunder. Each Obligor further acknowledges that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement.
(b) Each Obligor authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor and its affiliates which has been delivered to such Lender by or on behalf of such Obligor pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor in connection with such Lender's credit evaluation of such Obligor and its affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT.
6. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is so obligated to that other Lender.
7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any Obligor, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, UTI - AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT actions, proceedings or claims that (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement.
8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001W-8BEN, Form 4224 W-8ECI or successors forms, and is other otherwise exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENT.
Appears in 1 contract
Samples: Loan and Security Agreement (Patterson Uti Energy Inc)
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company the Companies and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company the Companies and for purposes of this section, Section 14 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company Borrower that such Lender will not make the amount which would constitute its share Pro Rata Share of the borrowing on such date available loan to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each Company the Borrowers a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share Pro Rata Share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any Company the Borrowers without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion Pro Rata Share of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the Borrowers the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion Pro Rata Share thereof.
2. 14.2 On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share Pro Rata Share of all outstanding Obligations.
3. 14.3 The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Companythe Borrowers.
4. 14.4 The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Lenders: (a) their pro rata portion Pro Rata Shares of all fees; , provided, however, that the Lenders (other than CITBC CIT in its role as the Agent) shall (xi) not share in the Administrative Collateral Management Fee or Fee, the Documentation Fees Fees, the audit fees or the Ex-Im Bank application and facility fees provided or any fees payable to an Issuing Bank for in Section 8the issuance of a Letter of Credit, Paragraphs 5 and 8 of this Agreement; and (yii) receive their share shares of the Loan Facility Fee in accordance with their respective agreements with the Agent andAgent; (b) their Pro Rata Shares of interest computed at the rate and as provided for in Section 8 of this Financing Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's the Borrowers' interest; (c) their Pro Rata Shares of all principal repaid on the Term Loan; and (d) their Pro Rata Shares of interest on the Term Loan computed at the rate and as provided for in Section 8 of this Financing Agreement.
(a) Each Obligor acknowledges The Companies acknowledge that the Lenders may sell participations, in an amount of not less than $5,000,000 participation in the loans and extensions of credit made and to be made to each Company the Borrowers hereunder. Each Obligor The Borrowers further acknowledges acknowledge that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Paragraph 15.10 of Section 14, Paragraph 10 15 of this Agreement.
(b) Each Obligor authorizes The Companies authorize each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREETransferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Companies and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Companies pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Companies in connection with such Lender's credit evaluation of such Obligor the Companies and its their affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT.
6. Each Company 14.6 The Companies hereby agrees agree that each Lender is solely responsible for its portion Pro Rata Share of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion Pro Rata Share of the Line of Credit. Further, should any Lender refuse to make available its portion Pro Rata Share of the Line of Credit, then the any other Lender may, but without obligation to do so, increase, unilaterally, its portion Pro Rata Share of the Line of Credit in which event such Company is the Companies are so obligated to that other Lender.
7. 14.7 In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by the Companies or any Obligorof them, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately in their Pro Rata Shares by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement and the other Loan Documents shall be shared proportionately in their Pro Rata Shares between and among the Lenders to the extent not reimbursed by such Company the Companies or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement.
8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENTof
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each the Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each the Company and for purposes of this section, Section 13 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any the Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each the Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any the Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any the Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
213.2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
313.3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each the Company.
413.4. The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; , provided, however, that the Lenders (other than CITBC CIT in its role as the Agent) shall (xi) not share in the Administrative Collateral Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this AgreementParagraph 8.11; and (yii) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent andAgent; (b) interest computed at the rate and as provided for in Section 8 of this Financing Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each the Company's interest; (c) its pro rata portion of all principal repaid on the Term Loan; and (d) interest on the Term Loan computed at the rate and as provided for in Section 8 of this Financing Agreement.
(a) Each Obligor The Company acknowledges that each Lender, with the Lenders prior written consent of the Agent, may sell participations, in an amount of not less than $5,000,000 participation in the loans and extensions of credit made and to be made to the Company hereunder to one or more Eligible Assignees; provided, however, that (i) each such sale shall be of a constant, and not a varying, percentage of all of the selling Lender's rights and obligations under this Agreement, (ii) the amount of the Commitment of the selling Lender that is subject to such sale shall in no event be less than $5,000,000 (the "Minimum Commitment"), (iii) in the case of a partial sale, the amount of the Commitment that is retained by the selling Lender shall in no event be less than the Minimum Commitment, (iv) such sale shall not, without the express consent of the Company, require the Company hereunderto file a registration statement with the Securities and Exchange Commission or apply to or qualify any of the loans or extensions of credit under the blue sky laws of any state, and (v) the Lender provides notice to the Company of the identity of the Eligible Assignee. Each Obligor further The Company acknowledges that in doing so, the Lenders may grant to such participants Eligible Assignees certain rights which would require the participantEligible Assignee's consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided that the consent of any such participant Eligible Assignee shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 1413, Paragraph 10 of this Agreement13.10 hereof.
(b) Each Obligor authorizes The Company authorize each Lender to disclose to any participant or purchasing lender Eligible Assignee (each, a "TRANSFEREETransferee") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Company and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Company in connection with such Lender's credit evaluation of such Obligor the Company and its their affiliates prior to entering into this Agreement, provided that such Transferee agrees to hold such information in confidence in the ordinary course of its business.
(c) At the request of Agent from time to time both before and after the Closing Date, the Company will assist Agent in the syndication of the credit facility provided pursuant to this Financing Agreement and the other Loan Documents. UTI - LOAN AND SECURITY AGREEMENTSuch assistance shall include, but not be limited to (i) prompt assistance in the preparation of an information memorandum and the verification of the completeness and accuracy of the information and the reasonableness of the projections contained therein, (ii) preparation of offering materials and financial projections by the Company and its advisors, (iii) providing Agent with all information reasonably deemed necessary by Agent to successfully complete the syndication, (iv) confirmation as to the accuracy and completeness of such offering materials and information and confirmation that management's projections are based on assumptions believed by the Loan Parties to be reasonable at the time made, and (v) participation of the Company's senior management in meetings and conference calls with potential lenders at such times and places as Agent may reasonably request.
613.6. Each The Company hereby agrees agree that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such the Company is are so obligated to that other Lender.
713.7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by the Company or any Obligorone of them, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such the Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Financing Agreement or (y) are based on transactions, actions or omissions that predate the date of this Financing Agreement.
813.8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor the Company held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizesthe Company authorize, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
913.9. CITBC The Agent shall have the right at any time to assign to one or more Eligible Assignees, Assignees all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made Financing Agreement (including, without limitation, its obligations under the Line of Credit, the Term Loan, the Revolving Loans and its rights and obligations with respect to any Person that does not, prior Letters of Credit). Subject to the execution of such Assignment Agreementprovisions set forth below, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon upon execution of an Assignment and Transfer Agreement, (ia) the assignee Eligible Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC the Agent as the case may be hereunder and (iib) CITBC the Agent shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Financing Agreement. Each Obligor The Agent may not assign any of its rights or obligations as an Agent hereunder and may only resign as Agent in accordance with Section 14.9 of this Agreement. The Company shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent. In the event that the Agent consents to any such assignment by any other Lenders (i) the assignee must be an Eligible Assignee, and (ii) the amount being assigned shall in no event be less than the lesser of (x) $5,000,000 or (y) the entire interest of such assignmentLender hereunder, if consented to, (iii) such assignment shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENTa pro-rata portion of all of such assigning Lender's loans and commitments hereunder, (iv) the parties to such assignment shall execute and deliver to the Agent an Assignment and Transfer Agreement, (v) such assignment shall not, without the express consent of the Company, require the Company to file a registration statement with the Securities and Exchange Commission or apply to or qualify any of the loans or extensions of credit under the blue sky laws of any state, (vi) the Lender provides notice to the Company of the identity of the Eligible Assignee and (vii) after giving effect to such transfer, unless an Event of Default is then existing, CIT's Commitment shall exceed the Commitments of any other Lenders.
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company the Companies and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company the Companies and for purposes of this section, Section 12 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company one or more of the Companies that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, Date and the Agent may, in reliance upon such assumption, make available to each Company one or more of the Companies a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's ’s share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the highest rate per annum applicable to Revolving Loans hereunder, on demand, from any Company the Companies without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each CompanyROA.
4. The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; , provided, however, that the Lenders (other than CITBC CIT in its role as the Lender and as Agent) shall (x) not share in the Administrative Collateral Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent andAgent; and (b) interest computed at the applicable rate and as provided for in Section 8 of this Financing Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's the Companies interest.
(a) Each Obligor Company acknowledges that the Lenders Lenders, with the consent of the Agent and ROA, which consent shall not be unreasonably withheld, may sell participations, in an amount of not less than $5,000,000 participations in the loans and extensions of credit made and to be made to each Company hereunderhereunder (the “Participants”) for amounts not less than $1,000,000.00 each. Each Obligor Company further acknowledges that in doing so, the Lenders may grant to such participants Participants certain rights which would require the participant's Participant’s consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided that the consent of any such participant Participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14Sxxxxxx 00, Paragraph 10 of this Agreement.Xxxxxxxxx 00 xxxxxx
(bx) Each Obligor Company authorizes each Lender to disclose to any participant Participant or purchasing lender (each, a "TRANSFEREE"“Transferee”) and any prospective Transferee any and all financial information in such Lender's ’s possession concerning such Obligor the Companies and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor any Company pursuant to this Financing Agreement or which has been delivered to such Lender by or on behalf of such Obligor any Company in connection with such Lender's ’s credit evaluation of such Obligor the Companies and its their affiliates prior to entering into this Financing Agreement. UTI - LOAN AND SECURITY AGREEMENT.
6. Each Company has made and will, from time to time, make available to the Agent and/or the Lenders certain financial and other business information (the “Confidential Information”) relating to its business. By their signatures hereto or to the Assignment and Transfer Agreement, the Agent and each Lender agree to maintain the confidentiality of all Confidential Information, and to disclose such information only (a) to officers, directors or employees of such Agent or Lender and their legal or financial advisors, in each case to the extent necessary to carry out this Financing Agreement and in the case of CIT, to any direct or indirect subsidiary, affiliate or parent of The CIT Group/Business Credit Inc., and to JX Xxxxxx Cxxxx Bank Corporation, (b) to any other Person to the extent the disclosure of such information to such Person is required in connection with the examination of a Lender’s records by appropriate authorities, pursuant to court order, subpoena or other legal process or otherwise as required by law or regulation, and (c) to Transferees or potential Transferees. The Lenders, the Agent, Transferees and potential Transferees shall not be required to maintain the confidentiality of any portion of the Confidential Information which (a) is known by such Person or its agents, advisors or representatives prior to disclosure or (b) becomes generally available to the public provided that the disclosure of such Confidential Information does not violate a confidentiality agreement of which the Transferees, potential Transferees, the Agent or the Lender, as the case may be, has actual knowledge.
7. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for for, the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other another Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is the Companies are so obligated to that other Lender.
78. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any ObligorCompany, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under under, this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' ’ fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company the Companies or from the proceeds of Collateral. The provisions of this paragraph Paragraph 8 shall not apply to any suits, actions, proceedings or claims that (x) predate the date of are unrelated, directly or indirectly, to this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Financing Agreement.
89. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor any Company held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders Lenders-to accelerate the Obligations. In addition, each Obligor Company authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of of, such Lender the Obligations due such Lenders.
910. CITBC CIT shall have the right at any time to assign to one or more Eligible Assigneescommercial banks, commercial finance lenders or other financial institutions all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment Financing Agreement (including, without limitation, its obligations under the Line of Credit, the Revolving Loans, the Term Loans and its rights and obligations with respect to Letters of Credit). The initial assignments by CIT shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligationsfor amounts not less than $1,000,000.00 each. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC CIT as the case may be hereunder and (ii) CITBC CIT shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Financing Agreement. Each Obligor Company shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest, in whole or in part, in the loans and advances and extensions of credit hereunder without (i) the prior written consent of the Agent and the Agent will give reasonable and good faith consideration to the opinions of ROA as to such prospective assignee; (ii) the payment to the Agent (solely for the Agent’s account) by the current or prospective Lender of a $5,000.00 fee for processing the assignment; and (iii) if the Transferee is a Foreign Lender (as defined in Paragraph 11 below) such Foreign Lender first complies with the provisions of Paragraph 11 below. Additionally, no other Lender shall assign such Lender’s interest in the loans and advances and extensions of credit hereunder without (or any portion thereof) unless the prior written consent interest to be so assigned is not less than $5,000,000.00 or all of the such Lender’s entire interest in the loans and advances and extensions of credit hereunder.
11. Any Lender organized under the laws of a jurisdiction outside of the United States (a “Foreign Lender”) shall deliver to Agent and ROA (i) two valid, duly completed copies of IRS Form 1001 or 4224 or successor applicable form, as the case may be, and any other required form, certifying in each case that such Foreign Lender is entitled to receive payments under this Financing Agreement without deduction or withholding of any United States federal income taxes, or (ii) if such Foreign Lender is not a “bank” within the meaning of Section 881(c) (3) (A) of the Internal Revenue Code and cannot deliver either IRS Form 1001 or 4224 pursuant to clause (i) above, (A) a duly completed certificate of non-withholding acceptable to ROA and the Agent in their reasonable discretion (any such certificate, a “Tax Certificate”) and (B) two valid, duly completed copies of IRS Form W-8 or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax. Each such Foreign Lender shall also deliver to Agent and ROA two further copies of said Form 1001 or 4224 or Form W-8 and a Tax Certificate, or successor applicable forms, or other manner of required certification, as the case may be, on or before the date that any such form expires or becomes obsolete or otherwise is required to be resubmitted as a condition to obtaining an exemption from a required withholding of United States of America federal income tax or after the occurrence of any event requiring a change in the most recent form previously delivered by it to ROA and Agent, and such assignmentextensions or renewals thereof as may reasonably be requested by ROA and Agent, if consented tocertifying (x) in the case of a Form 1001 or 4224 that such Foreign Lender is entitled to receive payments under this Financing Agreement without deduction or withholding of any United States federal income taxes, shall be or (y) in amounts the case of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENTa Form W-8 and a Tax Certificate, establishing an exemption from United States backup withholding tax.
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each Company and for purposes of this section, the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
2. On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Company.
4. The Agent shall, after receipt of any interest and fees earned under this Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; provided, however, that the UTI - LOAN AND SECURITY AGREEMENT 81 85 Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent and; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interest.
(a) Each Obligor acknowledges that the Lenders may sell participations, in an amount of not less than $5,000,000 in the loans and extensions of credit made and to be made to each Company hereunder. Each Obligor further acknowledges that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement.
(b) Each Obligor authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor and its affiliates which has been delivered to such Lender by or on behalf of such Obligor pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor in connection with such Lender's credit evaluation of such Obligor and its affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT.
6. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is so obligated to that other Lender.
7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any Obligor, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement.
8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENT
Appears in 1 contract
AGREEMENT BETWEEN THE LENDERS. (aA) The Agent, for the account of the Lenders, shall disburse all loans and advances to each the Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each the Company and for purposes of this section, Section 13 the Agent is using the funds of the Agent.
(bB) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any the Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each the Company a corresponding amount. A certificate of the Agent submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any the Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any the Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
2. 13.2 On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
3. The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each Company.
4. The Agent shall, after receipt of any interest and fees earned under this Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; provided, however, that the Lenders (other than CITBC in its role as the Agent) shall (x) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this Agreement; and (y) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent and; (b) interest computed at the rate and as provided for in Section 8 of this Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each Company's interest.
(a) Each Obligor acknowledges that the Lenders may sell participations, in an amount of not less than $5,000,000 in the loans and extensions of credit made and to be made to each Company hereunder. Each Obligor further acknowledges that in doing so, the Lenders may grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement.
(b) Each Obligor authorizes each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor and its affiliates which has been delivered to such Lender by or on behalf of such Obligor pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor in connection with such Lender's credit evaluation of such Obligor and its affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT
6. Each Company hereby agrees that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such Company is so obligated to that other Lender.
7. In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by any Obligor, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such Company or from the proceeds of Collateral. The provisions of this paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Agreement or (y) are based on transactions, actions or omissions that predate the date of this Agreement.
8. Each of the Lenders agrees with each other Lender that any money or assets of each Obligor held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizes, and the Lenders shall have the right, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender the Obligations due such Lenders.
9. CITBC shall have the right at any time to assign to one or more Eligible Assignees, all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this Agreement; provided that no such assignment shall be made to any Person that does not, prior to the execution of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 or successors forms, and is other exempt from IRS interest withholding obligations. Upon execution of an Assignment and Transfer Agreement, (i) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC as the case may be hereunder and (ii) CITBC shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement. Each Obligor shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent, and such assignment, if consented to, shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENT
Appears in 1 contract
Samples: Financing Agreement (Strouds Inc)
AGREEMENT BETWEEN THE LENDERS. (a) The Agent, for the account of the Lenders, shall disburse all loans and advances to each the Company and shall handle all collections of Collateral and repayment of Obligations. It is understood that for purposes of advances to each the Company and for purposes of this section, Section 13 the Agent is using the funds of the Agent.
(b) Unless the Agent shall have been notified in writing by any Lender prior to any advance to any the Company that such Lender will not make the amount which would constitute its share of the borrowing on such date available to the Agent, the Agent may assume that such Lender shall UTI - LOAN AND SECURITY AGREEMENT 80 84 make such amount available to the Agent on a Settlement Date, and the Agent may, in reliance upon such assumption, make available to each the Company a corresponding amount. A certificate of the Agent 83 -81- submitted to any Lender with respect to any amount owing under this subsection shall be conclusive, absent manifest error. If such Lender's share of such borrowing is not in fact made available to the Agent by such Lender on the Settlement Date, the Agent shall be entitled to recover such amount with interest thereon at the rate per annum applicable to Revolving Loans hereunder, on demand, from any the Company without prejudice to any rights which the Agent may have against such Lender hereunder. Nothing contained in this subsection shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof. Nothing contained herein shall be deemed to obligate the Agent to make available to any the Company the full amount of a requested advance when the Agent has any notice (written or otherwise) that any of the Lenders will not advance its ratable portion thereof.
(2. ) On the Settlement Date, the Agent and the Lenders shall each remit to the other, in immediately available funds, all amounts necessary so as to ensure that, as of the Settlement Date, the Lenders shall have their proportionate share of all outstanding Obligations.
(3. ) The Agent shall forward to each Lender, at the end of each month, a copy of the account statement rendered by the Agent to each the Company.
(4. ) The Agent shall, after receipt of any interest and fees earned under this Financing Agreement, promptly remit to the Lenders: (a) their pro rata portion of all fees; , provided, however, that the Lenders (other than CITBC CIT in its role as the Agent) shall (xi) not share in the Administrative Management Fee or Documentation Fees or the fees provided for in Section 8, Paragraphs 5 and 8 of this AgreementFees; and (yii) receive their share of the Loan Facility Fee in accordance with their respective agreements with the Agent andAgent; (b) interest computed at the rate and as provided for in Section 8 of this Financing Agreement on all outstanding amounts advanced by the Lenders on each Settlement Date, prior to adjustment, that are subsequent to the last remittance by the Agent to the Lenders of each the Company's interest; (c) its pro rata portion of all principal repaid on the Term Loan; and (d) interest on the Term Loan computed at the rate and as provided for in Section 8 of this Financing Agreement.
(a) Each Obligor acknowledges The Company acknowledge that the Lenders with the prior written consent of the Agent may sell participations, in an amount of not less than $5,000,000 participation in the loans and extensions of credit made and to be made to each the Company hereunder. Each Obligor The Company further acknowledges acknowledge that in doing so, the Lenders may 84 -82- grant to such participants certain rights which would require the participant's consent to certain waivers, amendments and other actions with respect to the provisions of this Financing Agreement, provided that the consent of any such participant shall not be required except for matters requiring the consent of all Lenders hereunder as set forth in Section 14, Paragraph 10 of this Agreement14(10) hereof.
(b) Each Obligor authorizes The Company authorize each Lender to disclose to any participant or purchasing lender (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning such Obligor the Company and its their affiliates which has been delivered to such Lender by or on behalf of such Obligor the Company pursuant to this Agreement or which has been delivered to such Lender by or on behalf of such Obligor the Company in connection with such Lender's credit evaluation of such Obligor the Company and its their affiliates prior to entering into this Agreement. UTI - LOAN AND SECURITY AGREEMENT, provided that such Transferee agrees to hold such information in confidence in the ordinary course of its business on the same terms as if such Transferee were an original party to this Agreement.
(6. Each ) The Company hereby agrees agree that each Lender is solely responsible for its portion of the Line of Credit and that neither the Agent nor any Lender shall be responsible for, nor assume any obligations for the failure of any Lender to make available its portion of the Line of Credit. Further, should any Lender refuse to make available its portion of the Line of Credit, then the other Lender may, but without obligation to do so, increase, unilaterally, its portion of the Line of Credit in which event such the Company is are so obligated to that other Lender.
(7. ) In the event that the Agent, the Lenders or any one of them is sued or threatened with suit by the Company or any Obligorone of them, or by any receiver, trustee, creditor or any committee of creditors on account of any preference, voidable transfer or lender liability issue, alleged to have occurred or been received as a result of, or during the transactions contemplated under this Financing Agreement, then in such event any money paid in satisfaction or compromise of such suit, action, claim or demand and any expenses, costs and attorneys' legal fees paid or incurred in connection therewith, whether by the Agent, the Lenders or any one of them, shall be shared proportionately by the Lenders. In addition, any costs, expenses, fees or disbursements incurred by outside agencies or attorneys retained by the Agent to effect collection or enforcement of any rights in the Collateral, including enforcing, preserving or maintaining rights under this Financing Agreement shall be shared proportionately between and among the Lenders to the extent not reimbursed by such the Company or from the proceeds of Collateral. The provisions of this 85 -83- paragraph shall not apply to any suits, actions, proceedings or claims that (x) predate the date of this Financing Agreement or (y) are based on transactions, actions or omissions that predate the date of this Financing Agreement.
8. (8) Each of the Lenders agrees with each other Lender that any money or assets of each Obligor the Company held or received by such Lender, no matter how or when received, shall be applied to the reduction of the Obligations (to the extent permitted hereunder) after (x) the occurrence of an Event of Default and so long as the same is continuing and (y) the election by the Required Lenders to accelerate the Obligations. In addition, each Obligor authorizesthe Company authorizes after the occurrence and during the continuance of an Event of Default, and the Lenders shall have the rightto, without notice, upon any amount becoming due and payable hereunder, to set-off and apply against any and all property held by, or in the possession of such Lender Lender, the Obligations due such Lenders.
(9. CITBC ) Each Lender shall have the right at any time to assign to one or more Eligible Assigneescommercial banks, commercial finance lenders or other financial institutions all or a portion (but in an amount that is not less than $5,000,000) of its rights and obligations under this AgreementFinancing Agreement (including, without limitation, its obligations under the Line of Credit, Term Loan, the Revolving Loans and its rights and obligations with respect to Letters of Credit) with the consent of the Company, such consent not to be unreasonably withheld; provided provided, however, that no such assignment consent shall be made to any Person that does not, prior to required after the execution occurrence and during the continuance of such Assignment Agreement, execute and deliver to the Agent and the Parent IRS Form 1001, Form 4224 a Default or successors forms, and is other exempt from IRS interest withholding obligationsEvent of Default. Upon execution of an Assignment and Transfer Agreement, (ia) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations of CITBC the Agent as the case may be hereunder and (iib) CITBC the Agent shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Financing Agreement. Each Obligor The Company shall, if necessary, execute any documents reasonably required to effectuate the assignments. No other Lender may assign its interest in the loans and advances and extensions of credit hereunder without the prior written consent of the Agent. In the event that the Agent consents to any such assignment by any other Lenders (i) the amount being assigned shall in no event be less than the lesser of (x) $5,000,000 or (y) the entire interest of such Lender hereunder, and (ii) such assignment, if consented to, assignment shall be in amounts of not less than $5,000,000. UTI - LOAN AND SECURITY AGREEMENTa pro-rata portion of all of such assigning Lender's loans and commitments hereunder and (iii) the parties to such assignment shall execute and deliver to the Agent an Assignment and Transfer Agreement.
Appears in 1 contract
