Modification of Agreement; Sale of Interest. This Agreement may not be modified, altered or amended, except by an agreement in writing signed by Borrower and Lender. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, or any portion thereof, including Borrower's rights, title, interests, remedies, powers, and duties hereunder or thereunder. Borrower hereby consents to Lender's participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents, or of any portion hereof or thereof, including Lender's rights, title, interests, remedies, powers, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. Borrower agrees that it will use its best efforts to assist and cooperate with Lender in any manner reasonably requested by Lender to effect the sale of participations in or assignments of any of the Loan Documents or any portion thereof or interest therein, including assisting in the preparation of appropriate disclosure documents. Borrower further agrees that Lender may disclose credit information regarding Borrower and its Subsidiaries to any potential Participant or assignee.
Appears in 1 contract
Samples: Loan and Security Agreement (Bayard Drilling Technologies Inc)
Modification of Agreement; Sale of Interest. This Agreement (i) The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrower, Required Lenders or all Lenders as required by the terms hereof, and, if required by the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, Documents or any portion thereof, including without limitation, such Borrower's rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to Agent's and any Lender's participation, salesale of participations, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent's and any Lender's rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best commercially reasonable efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, assistance in the preparation of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lenders and such Lender's respective commitments. In addition, Borrower will make their management available to meet with potential Lenders or Participating Lenders from time to time as reasonably requested by Agent. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell participations or assign, transfer or otherwise dispose of any of the Loan Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent, [and if no Event of Default has occurred and is continuing, Borrower,] which consent shall not be unreasonably withheld or delayed.
(ii) In respect to any assignment by a Lender of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitments, the Revolving Credit Loans owed to it and the Revolving Credit Note held by it), (x) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (y) except in the preparation case of appropriate disclosure documentsan assignment of all of a Lender's rights and obligations under this Agreement, (A) the aggregate amount of the Revolving Loan Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as to which Borrower and Agent may consent to and (B) after giving effect to each such assignment, the amount of the Revolving Loan Commitment of the assigning Lender shall in no event be less than $5,000,000, (z) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance in the form of Exhibit 12.3(ii) hereto (an "Assignment and Acceptance"), together with any Revolving Credit Note, subject to such assignment and a processing and recordation fee of $3,500, and (aa) any Lender may without the consent of Borrower or the Agent, and without paying any fee, assign to any Affiliate of such Lender that is a bank or financial institution all of its rights and obligations under this Agreement. The foregoing notwithstanding, no Person may become a Lender or a Participating Lender hereunder, unless such Person is a financial institution having stockholders' equity (or the equivalent) of at least One Hundred Million Dollars ($100,000,000). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance (x) 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 and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). If, pursuant to this Section 12.3, any interest in this Agreement or any Revolving Credit Loan, Revolving Credit Note, Letter of Credit or LC Guaranty is transferred to any transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such transferee (other than any Participating Lender), and may cause any Participating Lender, concurrently with the effectiveness of such transfer, (a) to represent to the transferor Lender (for the benefit of the transferor Lender, Agent, and Borrower) that under applicable law and treaties no Taxes will be required to be withheld by Agent, Borrower further agrees or the transferor Lender with respect to any payments to be made to such transferee in respect of the Revolving Credit Loans, Revolving Credit Notes, Letters of Credit or LC Guaranties, (b) to furnish to the transferor Lender, Agent and Borrower either U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECI (wherein such transfer claims entitlement to complete exemption form U.S. federal withholding tax on all interest payments hereunder), and (c) to agree (for the benefit of the transferor Lender, Agent and Borrower) to provide the transferor Lender, Agent and Borrower a new Form W-8BEN or Form W-8ECI upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(iii) In the event any Lender assigns or otherwise transfers all or any part of its Revolving Credit Note, any such Lender shall so notify Borrower and Borrower shall, upon the request of such Lender, issue new Revolving Credit Notes in exchange for the old Revolving Credit Note.
(iv) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Borrowers (a "Participating Lender") participating interests in any Loans, the commitments of that Lender may disclose credit information regarding and the other interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (x) no participation shall be for an amount of less than Five Million Dollars ($5,000,000), (y) the originating Lender's obligations under this Agreement shall remain unchanged, (z) the originating Lender shall remain solely responsible for the performance of such obligations, (aa) Borrower and its Subsidiaries the Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (bb) no Lender shall grant any potential Participant participation under which the Participating Lender shall have rights to approve any amendment to or assignee.waiver of this Agreement or the Loan Documents, except to the extent such amendment or waiver would: (A) extend the final maturity date for payment of the Loans in which such Participating Lender is participating; (B) reduce the interest rate or the amount of principal or fees applicable to the Loans in which such Participating Lender is participating; or
Appears in 1 contract
Samples: Loan and Security Agreement (Home Products International Inc)
Modification of Agreement; Sale of Interest. This Agreement (i) The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrower, Required Lenders or all Lenders as required by the terms hereof, and, if required by the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, Documents or any portion thereof, including without limitation, such Borrower's ’s rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to Agent’s and any Lender's participation, sale’s sale of participations, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent’s and any Lender's ’s rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best commercially reasonable efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, assistance in the preparation of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lenders and such Lender’s respective commitments. In addition, Borrower will make their management available to meet with potential Lenders or Participating Lenders from time to time as reasonably requested by Agent. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell participations or assign, transfer or otherwise dispose of any of the Loan Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent, and if no Event of Default has occurred and is continuing, Borrower, which consent shall not be unreasonably withheld or delayed.
(ii) In respect to any assignment by a Lender of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitments, the Revolving Credit Loans owed to it and the Revolving Credit Note held by it), (x) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (y) except in the preparation case of appropriate disclosure documentsan assignment of all of a Lender’s rights and obligations under this Agreement, (A) the aggregate amount of the Revolving Loan Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as to which Borrower and Agent may consent to and (B) after giving effect to each such assignment, the amount of the Revolving Loan Commitment of the assigning Lender shall in no event be less than $5,000,000, (z) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance in the form of Exhibit 12.3(ii) hereto (an “Assignment and Acceptance”), together with any Revolving Credit Note, subject to such assignment and a processing and recordation fee of $3,500, (aa) any such assignee shall be a Qualified Assignee and (bb) any Lender may without the consent of Borrower or the Agent, and without paying any fee, assign to any Affiliate of such Lender that is a bank or financial institution all of its rights and obligations under this Agreement. The foregoing notwithstanding, no Person may become a Lender or a Participating Lender hereunder, unless such Person is a financial institution having stockholders’ equity (or the equivalent) of at least One Hundred Million Dollars ($100,000,000). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance (x) 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 and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). If, pursuant to this Section 12.3, any interest in this Agreement or any Revolving Credit Loan, Revolving Credit Note, Letter of Credit or LC Guaranty is transferred to any transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such transferee (other than any Participating Lender), and may cause any Participating Lender, concurrently with the effectiveness of such transfer, (a) to represent to the transferor Lender (for the benefit of the transferor Lender, Agent, and Borrower) that under applicable law and treaties no Taxes will be required to be withheld by Agent, Borrower further agrees or the transferor Lender with respect to any payments to be made to such transferee in respect of the Revolving Credit Loans, Revolving Credit Notes, Letters of Credit or LC Guaranties, (b) to furnish to the transferor Lender, Agent and Borrower either U.S. Internal Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECI (wherein such transfer claims entitlement to complete exemption form U.S. federal withholding tax on all interest payments hereunder), and (c) to agree (for the benefit of the transferor Lender, Agent and Borrower) to provide the transferor Lender, Agent and Borrower a new Form W-8BEN or Form W-8ECI upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(iii) In the event any Lender assigns or otherwise transfers all or any part of its Revolving Credit Note, any such Lender shall so notify Borrower and Borrower shall, upon the request of such Lender, issue new Revolving Credit Notes in exchange for the old Revolving Credit Note.
(iv) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Borrowers (a “Participating Lender”) participating interests in any Loans, the commitments of that Lender may disclose credit information regarding and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (x) no participation shall be for an amount of less than Five Million Dollars ($5,000,000), (y) the originating Lender’s obligations under this Agreement shall remain unchanged, (z) the originating Lender shall remain solely responsible for the performance of such obligations, (aa) Borrower and the Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s rights and obligations under this Agreement and the other Loan Documents, and (bb) no Lender shall grant any participation under which the Participating Lender shall have rights to approve any amendment to or waiver of this Agreement or the Loan Documents, except to the extent such amendment or waiver would: (A) extend the final maturity date for payment of the Loans in which such Participating Lender is participating; (B) reduce the interest rate or the amount of principal or fees applicable to the Loans in which such Participating Lender is participating; or (C) release all or substantially all of the Collateral, except as expressly provided herein. In those cases in which an originating Lender grants rights to a Participating Lender to approve any amendment to or waiver of this Agreement or the other Loan Documents respecting the matters described in clauses (A) through (C) of the preceding sentence, the relevant participation agreements shall provide for a voting mechanism whereby a majority of the amount of such Lender’s portion of the Loans (irrespective of whether held by such Lender or a Participating Lender) shall control the vote for all of such Lender’s portion of the Loans. In the case of any participation, the Participating Lender shall not have any rights under this Agreement or any of the other Loan Documents entered into in connection herewith (the Participating Lender’s right against such Lender in respect of such participation to be those set forth in the participation or other agreement executed by such Lender and the Participating Lender relating thereto). In no event shall any Participating Lender grant a participation in its Subsidiaries participation interest in the Loans without the prior written consent of Agent, which approval shall not be unreasonably withheld or delayed. All amounts payable by Borrower hereunder shall be determined as if the originating Lender had not sold any such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participating Lender shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(v) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(vi) No amendment or waiver of any provision of this Agreement or the Notes or any other Loan Document, nor consent to any potential Participant departure by Borrowers therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or assigneeconsent shall be effective only in the specific instance and for the specific purpose for which given; provided, however: (x) that no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby do any of the following: a) increase the aggregate Revolving Loan Commitments or subject any Lender to any additional obligations, (b) reduce the principal of, or decrease the rate of interest on, the Notes or other amount payable hereunder other than those payable only to FCC in its capacity as Agent which may be reduced by FCC unilaterally, (c) postpone any date fixed for any payment of principal of, or interest on, the Notes or other amounts payable hereunder, other than those payable only to FCC in its capacity as Agent which may be postponed by FCC unilaterally, (d) reduce the aggregate unpaid principal amount of the Notes, or the number of Lenders which shall be required for the Lenders or any of them to take any action hereunder, (e) release or discharge any Person liable for the performance of any obligations of Borrower hereunder or under any of the Loan Documents except in accordance with the terms of such Loan Documents or as otherwise permitted herein, (f) increase the advance rates contained in the definition of the Borrowing Base, (g) to the extent Agent’s or Lenders’ consent is required by the terms hereof, release all or substantially all of the Collateral or (h) amend this Section 12.3; and (y) that no amendment, waiver or consent shall be effective unless in writing and signed by either Required Lenders or all Lenders, as required by the terms hereof and, if such amendment, waiver or consent affects Agent or its rights hereunder, Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Home Products International Inc)
Modification of Agreement; Sale of Interest. This Agreement may not be modified, altered or amended, except by an agreement in writing signed by Borrower each Loan Party and Lender. Borrower No Loan Party may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, or any portion thereof, including Borrowerincluding, without limitation, such Loan Party's rights, title, interests, remedies, powers, and duties hereunder or thereunder. Borrower Each Loan Party hereby consents to Lender's participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents, or of any portion hereof or thereof, including including, without limitation, Lender's rights, title, interests, remedies, powers, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participationthereunder; provided, however, no such sale, assignment, participation, transfer or other disposition, at disposition by Lender will result in any time or times hereafter, diminution of the rights and obligations of the Loan Parties under this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been givenDocuments. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignmentassignments. Borrower Each Loan Party agrees that it will use its best efforts to assist and cooperate with Lender in any manner reasonably requested by Lender to effect the sale of participations in or assignments of any of the Loan Documents or any portion thereof or interest therein, including including, without limitation, assisting in the preparation of appropriate disclosure documents; provided, however, Borrower shall not be responsible for reimbursing Lender for any fees or expenses incurred by Lender in connection with any such sale, participation or assignment. Borrower Each Loan Party further agrees that Lender may disclose credit information regarding Borrower such Loan Party and its Subsidiaries to any potential Participant participant or assignee.
Appears in 1 contract
Modification of Agreement; Sale of Interest. This Agreement may not be modified, altered or amended, except by an agreement in writing signed by Borrower each Obligor and Lender. Borrower An Obligor may not sell, assign or transfer any interest in this Agreement, Agreement or any of the other Loan Documents, or any of the Obligations, or any portion thereof, including Borrowersuch Obligor's rights, title, interests, remedies, powers, and duties hereunder or thereunder. Borrower hereby consents Lender shall have the right to sell, assign, transfer or otherwise dispose of its right, title, interests. remedies, powers and duties hereunder and under any other Loan Documents, or to sell participation interests therein, at any time or from time to time, without first giving notice to, or obtaining the prior written consent of, Obligor, so long as (i) Lender retains at least a majority in interest in the rights, titles, interests, remedies, power and duties so conveyed, (ii) the Participating Lender is a Permitted Assignee (as hereinafter defined) and (iii) upon receiving such sale, assignment or participation, the Participating Lender becomes subject to the same terms, covenants and conditions as to which Lender is then subject hereunder, to the extent of sale, assignment or participation. As used herein, the term "ELIGIBLE ASSIGNEE" shall mean: (i) North Carolina Bank, Depository Bank or any other affiliate of Lender's ; (ii) any national bank or state-chartered bank domiciled in the United States of America, or any affiliate thereof, having total assets of at least $1,000,000,000; or (iii) any other Person(s) to which an Obligor shall have consented in writing at any time. In the event of any such participation, sale, assignment, transfer or other disposition, at any time Lender is authorized to provide to each Participating Lender, assignee or times hereafter, of this Agreement and any of the other Loan Documents, or of any portion hereof or thereof, including transferee all information in Lender's rights, title, interests, remedies, powers, possession regarding each Obligor and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been givenCollateral. In the case of an any such assignment, the assignee Person receiving such assignment, shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder an original Lender hereunder, and Lender shall be relieved of all its obligations hereunder upon with respect to its assigned portion thereof. Each Obligor hereby acknowledges and agrees that any such assignment. Borrower agrees assignment will give rise to a direct obligation of such Obligor to the Person receiving such assignment and that it will use its best efforts such Person, upon such assignment becoming effective, shall be considered to assist be a "Lender" or the "Lender" for all purposes of this Agreement and cooperate with Lender in any manner reasonably requested by Lender to effect the sale of participations in or assignments of any of the Loan Documents or any portion thereof or interest therein, including assisting in the preparation of appropriate disclosure documents. Borrower further agrees that Lender may disclose credit information regarding Borrower and its Subsidiaries to any potential Participant or assigneeDocuments.
Appears in 1 contract
Modification of Agreement; Sale of Interest. This Agreement The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrower, Required Lenders or all Lenders as required by the terms hereof, and, if required by the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, Documents or any portion thereof, including without limitation, Borrower's rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to Agent's and any Lender's participation, salesale of participations, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent's and any Lender's rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best commercially reasonable efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, review of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lender and such Lender's respective commitments. In addition, Borrower will make its management available to meet with potential Lenders or Participating Lenders from time to time as reasonably requested by Agent. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell, assign, transfer or otherwise dispose (except as otherwise permitted by Section 12.3(d)) of any of the Loan Documents or any portion thereof or interest therein, including assisting in without the preparation prior written consent of appropriate disclosure documentsAgent (which shall not be unreasonably withheld or delayed). Any Lender who desires to sell or assign any of its rights and interests hereunder shall, if no Event of Default is existing and continuing, consult with Borrower further agrees that Lender may disclose credit information regarding as to the identify of any such potential assignee, but Borrower and its Subsidiaries shall not have the right to approve any potential Participant or such assignee.
Appears in 1 contract
Samples: Loan and Security Agreement (Eagle Pacific Industries Inc/Mn)
Modification of Agreement; Sale of Interest. This Agreement (A) The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrowers, Required Lenders or all Lenders as required by the terms hereof, and, if required by the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, Documents or any portion thereof, including without limitation, Borrower's ’s rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to Agent’s and any Lender's ’s sale of participation, sale, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent’s and any Lender's ’s rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best commercially reasonable efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations participation in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, review of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lender and such Lender’s respective commitments. In addition, Borrower will make its management available to meet with potential Lenders or Participating Lenders from time to time as reasonably requested by Agent. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell participation or assign, transfer or otherwise dispose of any of the Loan Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent, which consent shall be unreasonably withheld or delayed.
(B) In respect to any assignment by a Lender of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitment, the Revolving Credit Loans owed to it and the Revolving Credit Note held by it) (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the preparation case of appropriate disclosure documentsan assignment of all of a Lender’s rights and obligations under this Agreement, (A) the aggregate amount of the Revolving Loan Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as to which Borrowers and Agent may consent to and (B) after giving effect to each such assignment, the amount of the Revolving Loan Commitment of the assigning Lender shall in no event be less than $5,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance in the form of Exhibit 12.3(B) hereto (an “Assignment and Acceptance”), together with any Revolving Credit Note subject to such assignment and a processing and recordation fee of $3,500, and (iv) any Lender may without the consent of Borrowers or the Agent, and without paying any fee, assign to any Affiliate of such Lender that is a bank or financial institution all of its rights and obligations under this Agreement. The foregoing notwithstanding, no Person may become a Lender or a Participating Lender hereunder, unless such Person is a financial institution having stockholders’ equity (or the equivalent) of at least One Hundred Million Dollars ($100,000,000). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance (x) 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 and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto). If, pursuant to this Section 12.3, any interest in this Agreement or any Revolving Credit Loan, Letter of Credit or LC Guaranty is transferred to any transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such transferee (other than any Participating Lender), and shall cause any Participating Lender, concurrently with the effectiveness of such transfer, (a) to represent to the transferor Lender (for the benefit of the transferor Lender, Agent, and Borrower) that under applicable law and treaties no Taxes will be required to be withheld by Agent, Borrower further agrees or the transferor Lender with respect to any payments to be made to such transferee in respect of the Revolving Credit Loans, Letters of Credit or LC Guaranties, (b) to furnish to the transferor Lender, Agent and Borrower either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such transferee claims entitlement to complete exemption form U.S. federal withholding tax on all interest payments hereunder), and (c) to agree (for the benefit of the transferor Lender, Agent and Borrower) to provide the transferor Lender, Agent and Borrower a new Form 4224 or Form 1001 upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(C) In the event any Lender assigns or otherwise transfers all or any part of its Revolving Credit Note, any such Lender shall so notify Borrower and Borrower shall, upon the request of such Lender, issue a new Revolving Credit Note in exchange for the old Revolving Credit Note.
(D) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Borrower (a “Participating Lender”) participating interests in any Loans, the commitments of that Lender may disclose credit information regarding and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower and the Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall grant any participation under which the Participating Lender shall have rights to approve any amendment to or waiver of this Agreement or the Loan Documents, except to the extent such amendment or waiver would: (A) extend the final maturity date for payment of the Loans in which such Participating Lender is participating; (B) reduce the interest rate or the amount of principal or fees applicable to the Loans in which such Participating Lender is participating; or (C) release all or substantially all of the Collateral, except as expressly provided herein. In those cases in which an originating Lender grants rights to a Participating Lender to approve any amendment to or waiver of this Agreement or the other Loan Documents respecting the matters described in clauses (A) through (C) of the preceding sentence, the relevant participation agreements shall provide for a voting mechanism whereby a majority of the amount of such Lender’s portion of the Loans (irrespective of whether held by such Lender or a Participating Lender) shall control the vote for all of such Lender’s portion of the Loans. In the case of any participation, the Participating Lender shall not have any rights under this Agreement or any of the other Loan Documents entered into in connection herewith (the Participating Lender’s right against such Lender in respect of such participation to be those set forth in the participation or other agreement executed by such Lender and the Participating Lender relating thereto). In no event shall any Participating Lender grant a participation in its Subsidiaries participation interest in the Loans without the prior written consent of Agent, which approval shall not be unreasonably withheld or delayed. All amounts payable by the Borrower hereunder shall be determined as if the originating Lender had not sold any such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participating Lender shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(E) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(F) No amendment or waiver of any provision of this Agreement or the Notes or any other Loan Document, including, without limitation, nor consent to any potential Participant departure by Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or assigneeconsent shall be effective only in the specific instance and for the specific purpose for which given; provided, however: (a) that no amendment, waiver or consent shall, unless in writing and signed by each Lender (other than a Defaulting Lender with respect to clauses (v), (vi) and (vii)) affected thereby do any of the following: (i) increase the aggregate Revolving Loan Commitments or subject any Lender to any additional obligations, (ii) reduce the principal of, or decrease the rate of interest on, the Notes or other amount payable hereunder other than those payable only to Bank of America in its capacity as Agent which may be reduced by Bank of America unilaterally, (iii) postpone any date fixed for any payment of principal of, or interest on, the Notes or other amounts payable hereunder, other than those payable only to Bank of America in its capacity as Agent which may be postponed by Bank of America unilaterally, (iv) reduce the aggregate unpaid principal amount of the Notes, or the number of Lenders which shall be required for the Lenders or any of them to take any action hereunder, (v) release or discharge any Person liable for the performance of any obligations of Borrower hereunder or under any of the Loan Documents except in accordance with the terms of such Loan Documents or as otherwise permitted herein, (vi) increase the advance rates contained in the definition of the Borrowing Base, (vii) to the extent Agent’s or Lenders’ consent is required by the terms hereof, release all or substantially all of the Collateral or (viii) amend this Section 12.3; (b) that no amendment, waiver or consent shall be effective unless in writing and signed by either Required Lenders or all Lenders, as required by the terms hereof and, if such amendment, waiver or consent affects Agent or its rights hereunder, Agent.
(G) The foregoing notwithstanding, provided that no Event of Default has occurred and is continuing, no Lender shall effect any transfer, assignment or participation of its interests hereunder if the effect of any such transfer, assignment or participation is to increase, in any material amount, Borrower’s costs or obligations hereunder.
(H) If a Lender (a) is a Defaulting Lender or (b) fails to give its consent to any amendment, waiver or action for which consent of all Lenders was required and Required Lenders consented, then, in addition to any other rights and remedies that any Person may have, Agent may, by notice to such Lender within 120 days after such event, require such Lender to assign all of its rights and obligations under the Loan Documents to a replacement Lender (acceptable to Borrower) specified by Agent, pursuant to appropriate Assignment and Acceptance(s) and within 20 days after Agent’s notice. Agent is irrevocably appointed as attorney-in-fact to execute any such Assignment and Acceptance if the Lender fails to execute same. Such Lender shall be entitled to receive, in cash, concurrently with such assignment, all amounts owed to it under the Loan Documents, including all principal, interest and fees through the date of assignment (but excluding any prepayment charge).
Appears in 1 contract
Samples: Loan and Security Agreement (Houston Wire & Cable CO)
Modification of Agreement; Sale of Interest. This Agreement (a) The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrowers, Required Lenders or all Lenders as required by the terms hereof, and, if required by the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, Documents or any portion thereof, including without limitation, Borrower's rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to Agent's and any Lender's sale of participation, sale, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent's and any Lender's rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best commercially reasonable efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations participation in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, review of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lender and such Lender's respective commitments. In addition, Borrower will make its management available to meet with potential Lenders or Participating Lenders from time to time as reasonably requested by Agent. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell, participate or assign, transfer or otherwise dispose of any of the Loan Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent, and if no Event of Default has occurred and is continuing, Borrower, which consent shall not be unreasonably withheld or delayed.
(b) In respect to any assignment by a Lender of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitments, the Revolving Credit Loans owed to it and the Revolving Credit Note held by it)
(i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the preparation case of appropriate disclosure documents. Borrower further agrees that an assignment of all of a Lender's rights and obligations under this Agreement, (A) the aggregate amount of the Revolving Loan Commitment of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as to which Borrowers and Agent may disclose credit information regarding Borrower consent to and (B) after giving effect to each such assignment, the amount of the Revolving Loan Commitment of the assigning Lender shall in no event be less than $5,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent, for its Subsidiaries to any potential Participant or assignee.acceptance, an Assignment
Appears in 1 contract
Samples: Loan and Security Agreement (Northwestern Steel & Wire Co)
Modification of Agreement; Sale of Interest. This Agreement (a) The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrowers, Required Lenders or all Lenders as required by the terms hereof, and, if required by the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, Documents or any portion thereof, including without limitation, Borrower's rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to Agent's and any Lender's sale of participation, sale, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent's and any Lender's rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best commercially reasonable efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations participation in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, review of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lender and such Lender's respective commitments. In addition, Borrower will make its management available to meet with potential Lenders or Participating Lenders from time to time as reasonably requested by Agent. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell participation or assign, transfer or otherwise dispose of any of the Loan Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent, which consent shall be unreasonably withheld or delayed.
(b) In respect to any assignment by a Lender of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitment, the Revolving Credit Loans owed to it and the Revolving Credit Note held by it, its Term Loan B Loan Commitment, the Term Loans B owed to it and the Term Note B held by it and the Term Loan A owed to it and the Term Note A held by it) (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the preparation case of appropriate disclosure documentsan assignment of all of a Lender's rights and obligations under this Agreement, (A) the aggregate amount of the Revolving Loan Commitment, undrawn Term Loan B Commitment, Term Loan A and Term Loans B of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as to which Borrowers and Agent may consent to and (B) after giving effect to each such assignment, the amount of the Revolving Loan Commitment, undrawn Term Loan B Commitment, Term Loan A and Term Loans B of the assigning Lender shall in no event be less than $5,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance in the form of Exhibit S hereto (an "Assignment and Acceptance"), together with any Revolving Credit Note, Term Note A and Term Note B subject to such assignment and a processing and recordation fee of $3,500, and (iv) any Lender may without the consent of Borrowers or the Agent, and without paying any fee, assign to any Affiliate of such Lender that is a bank or financial institution all of its rights and obligations under this Agreement. The foregoing notwithstanding, no Person may become a Lender or a Participating Lender hereunder, unless such Person is a financial institution having stockholders' equity (or the equivalent) of at least One Hundred Million Dollars ($100,000,000). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance (x) 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 and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). If, pursuant to this Section 12.3, any interest in this Agreement or any Revolving Credit Loan, Term Loan A, Term Loans B, Letter of Credit or LC Guaranty is transferred to any transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such transferee (other than any Participating Lender), and shall cause any Participating Lender, concurrently with the effectiveness of such transfer, (a) to represent to the transferor Lender (for the benefit of the transferor Lender, Agent, and Borrower) that under applicable law and treaties no Taxes will be required to be withheld by Agent, Borrower further agrees or the transferor Lender with respect to any payments to be made to such transferee in respect of the Revolving Credit Loans, Term Loan A, Term Loans B, Notes, Letters of Credit or LC Guaranties, (b) to furnish to the transferor Lender, Agent and Borrower either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such transferee claims entitlement to complete exemption form U.S. federal withholding tax on all interest payments hereunder), and (c) to agree (for the benefit of the transferor Lender, Agent and Borrower) to provide the transferor Lender, Agent and Borrower a new Form 4224 or Form 1001 upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(c) In the event any Lender assigns or otherwise transfers all or any part of its Revolving Credit Note, Term Note A or Term Note B, any such Lender shall so notify Borrower and Borrower shall, upon the request of such Lender, issue a new Revolving Credit Note, Term Note A and Term Note A in exchange for the old Revolving Credit Note, Term Note A and Term Note B.
(d) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Borrower (a "Participating Lender") participating interests in any Loans, the commitments of that Lender may disclose credit information regarding and the other interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower and the Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall grant any participation under which the Participating Lender shall have rights to approve any amendment to or waiver of this Agreement or the Loan Documents, except to the extent such amendment or waiver would: (A) extend the final maturity date for payment of the Loans in which such Participating Lender is participating; (B) reduce the interest rate or the amount of principal or fees applicable to the Loans in which such Participating Lender is participating; or (C) release all or substantially all of the Collateral, except as expressly provided herein. In those cases in which an originating Lender grants rights to a Participating Lender to approve any amendment to or waiver of this Agreement or the other Loan Documents respecting the matters described in clauses (A) through (C) of the preceding sentence, the relevant participation agreements shall provide for a voting mechanism whereby a majority of the amount of such Lender's portion of the Loans (irrespective of whether held by such Lender or a Participating Lender) shall control the vote for all of such Lender's portion of the Loans. In the case of any participation, the Participating Lender shall not have any rights under this Agreement or any of the other Loan Documents entered into in connection herewith (the Participating Lender's right against such Lender in respect of such participation to be those set forth in the participation or other agreement executed by such Lender and the Participating Lender relating thereto). In no event shall any Participating Lender grant a participation in its Subsidiaries participation interest in the Loans without the prior written consent of Agent, which approval shall not be unreasonably withheld or delayed. All amounts payable by the Borrower hereunder shall be determined as if the originating Lender had not sold any such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participating Lender shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board or U.S. Treasury Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) No amendment or waiver of any provision of this Agreement or the Notes or any other Loan Document, including, without limitation, the CHS Guaranty, nor consent to any potential Participant departure by Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or assigneeconsent shall be effective only in the specific instance and for the specific purpose for which given; provided, however: (a) that no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby do any of the following: (i) increase the aggregate Revolving Loan Commitments, Term Loan A Commitments, Term Loan B Commitments or subject any Lender to any additional obligations, (ii) reduce the principal of, or decrease the rate of interest on, the Notes or other amount payable hereunder other than those payable only to FCC in its capacity as Agent which may be reduced by FCC unilaterally, (iii) postpone any date fixed for any payment of principal of, or interest on, the Notes or other amounts payable hereunder, other than those payable only to FCC in its capacity as Agent which may be postponed by FCC unilaterally, (iv) reduce the aggregate unpaid principal amount of the Notes, or the number of Lenders which shall be required for the Lenders or any of them to take any action hereunder, (v) release or discharge any Person liable for the performance of any obligations of Borrower hereunder or under any of the Loan Documents except in accordance with the terms of such Loan Documents or as otherwise permitted herein, (vi) increase the advance rates contained in the definition of the Borrowing Base, (vii) to the extent Agent's or Lenders' consent is required by the terms hereof, release all or substantially all of the Collateral or (viii) amend this Section 12.3; (b) that no amendment, waiver or consent shall be effective unless in writing and signed by either Required Lenders or all Lenders, as required by the terms hereof and, if such amendment, waiver or consent affects Agent or its rights hereunder, Agent.
(g) The foregoing notwithstanding, provided that no Event of Default has occurred and is continuing, no Lender shall effect any transfer, assignment or participation of its interests hereunder if the effect of any such transfer, assignment or participation is to increase, in any material amount, Borrower's costs or obligations hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Houston Wire & Cable CO)
Modification of Agreement; Sale of Interest. This Agreement (a) The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrower, Majority Lenders and, if required by the terms hereof, Agent. No Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, or any portion thereof, including without limitation, any Borrower's rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Each Borrower hereby consents to Agent's and any Lender's sale of participation, sale, assignment, transfer or other dispositiondisposition in accordance with the terms of this Section 12.6, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent's and any Lender's rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Each Borrower agrees that it will use its best efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations participation in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, assistance in the preparation of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lenders and such Lender's respective commitments. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell participate or assign, transfer or otherwise dispose of any of the Loan Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent, which shall not be unreasonably withheld.
(b) In respect to any assignment by a Lender of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Credit Commitments, the Revolving Loans owed to it and the Note held by it (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the preparation case of appropriate disclosure documentsan assignment of all of a Lender's rights and obligations under this Agreement, (A) the aggregate amount of the Revolving Credit Commitments of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $2,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as to which Borrower and the Agent may consent to and (B) after giving effect to each such assignment in the amount of the Revolving Credit Commitments of the Assigning Lender shall in no event be less than $2,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance in the form of Exhibit Y hereto (an "Assignment and Acceptance"), together with any Note subject to such assignment and a processing and recordation fee of $3,500, and (iv) any Lender may without the consent of Borrower or the Agent, and without paying any fee, assign to any Affiliate of such Lender that is a bank or financial institution all of its rights and obligations under this Agreement. The foregoing notwithstanding, no Person may become a Lender or a Participating Lender hereunder, unless such Person is a financial institution having stockholders' equity (or the equivalent) of at least One Hundred Million Dollars ($100,000,000). Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance (x) 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 and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). If, pursuant to this Section 12.6, any interest in this Agreement or any Revolving Credit Loan or any Note is transferred to any transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such transferee (other than any Participating Lender), and may cause any Participating Lender concurrently with the effectiveness of such transfer, (a) to represent to the transferor Lender (for the benefit of the transferor Lender, Agent and Borrower) that under applicable law and treaties no Taxes will be required to be withheld by Agent, Borrower further or the transferor Lender with respect to any payments to be made to such transferee in respect of the Revolving Credit Loans, or the Notes, (b) to furnish to the transferor Lender, Agent or Borrower either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such transfer claims entitlement to complete exemption form U.S. federal withholding tax on all interest payments hereunder), and (c) to agree (for the benefit of the transferor Lender, Agent and Borrower) to provide the transferor Lender, Agent and Borrower a new Form 4224 or Form 1001 upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(c) In addition to, and not in limitation of the foregoing, Borrower acknowledges that if Fleet intends to sell, assign or participate any of its Revolving Credit Commitments, Borrower agrees to use its best efforts to assist Fleet in any respect to any such sale, assignment or participation.
(i) In the event any Lender assigns or otherwise transfers all or any part of its Note any such Lender shall so notify Borrower and Borrower shall, upon the request of such Lender, issue new Notes in exchange for the old Notes.
(ii) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Borrower (a "Participating Lender") participating interests in any Loans, the Revolving Credit Commitments of that Lender may disclose credit information regarding and the other interests of that Lender (the "Originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the Originating Lender's obligations under this Agreement shall remain unchanged, (ii) the Originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower and the Agent shall continue to deal solely and directly with the Originating Lender in connection with the Originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall grant any participation under which the Participating Lender shall have rights to approve any amendment to or waiver of this Agreement or the Loan Documents, except to the extent such amendment or waiver would: (A) extend the final maturity date for payment of the Loans in which such Participating Lender is participating; (B) reduce the interest rate or the amount of principal or fees applicable to the Loans in which such Participating Lender is participating; or (C) release all or substantially all of the Collateral, except as expressly provided herein. In those cases in which an Originating Lender grants rights to a Participating Lender to approve any amendment to or waiver of this Agreement or the other Loan Documents respecting the matters described in clauses (A) through (C) of the preceding sentence, the relevant participation agreements shall provide for a voting mechanism whereby a majority of the amount of such Lender's portion of the Loans (irrespective of whether held by such Lender or participated) shall control the vote for all of such Lender's portion of the Loans. In the case of any participation, the Participating Lender shall not have any rights under this Agreement or any of the other Loan Documents entered into in connection herewith (the Participating Lender's right against such Lender in respect of such participation to be those set forth in the participation or other agreement executed by such Lender and the Participating Lender relating thereto). In no event shall any Participating Lender grant a participation in its Subsidiaries participation interest in the Loans without the prior written consent of Agent, which approval shall not be unreasonably withheld. All amounts payable by Borrower hereunder shall be determined as if the Originating Lender had not sold any such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participating Lender shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(iii) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board or U.S. Treasury Regulation 31 C.F.R. Section 203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(iv) No amendment or waiver of any provision of this Agreement or the Notes or any other Loan Document, nor consent to any potential Participant departure by Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Lenders, and then such waiver or assigneeconsent shall be effective only in the specific instance and for the specific purpose for which given; provided, however: (a) that no amendment, waiver or consent -------- shall, unless in writing and signed by each Lender affected thereby do any of the following: (i) increase the aggregate Revolving Credit Commitments, or subject any Lender to any additional obligations, (ii) reduce the principal of, or decrease the rate of interest on, the Notes or other amount payable hereunder other than those payable only to Fleet in its capacity as Agent which may be reduced by Fleet unilaterally, (iii) postpone any date fixed for any payment of principal of, or interest on, the Notes or other amounts payable hereunder, other than those payable only to Fleet in its capacity as Agent which may be postponed by Fleet unilaterally, (iv) reduce the aggregate unpaid principal amount of the Notes, or the number of Lenders which shall be required for the Lenders or any of them to take any action hereunder, (v) release or discharge any Person liable for the performance of any obligations of Borrower hereunder or under any of the Loan Documents, (vi) increase the advance rates contained in the definition of the Borrowing Base, (vii) to the extent Agent's or Lenders' consent is required by the terms hereof, release all or substantially all of the Collateral or (viii) amend this Section 12.6; (b) that no amendment, waiver or consent shall be effective unless in writing and signed by either Required Lenders or all Lenders, as required by the terms hereof and, if such amendment, waiver or consent affects Agent or its rights hereunder, Agent.
(v) The foregoing notwithstanding, Agent on behalf of itself and all Lenders may waive Events of Default arising from the breach of any of the financial covenants contained in Section 8.3 if the deviation from each such financial covenant does not exceed ten percent (10%).
Appears in 1 contract
Samples: Loan and Security Agreement (Cal Dive International Inc)
Modification of Agreement; Sale of Interest. This Agreement (a) The Guaranty Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrower, Required Guarantors and, if required by 34 39 the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Guaranty Documents, or any of the Obligations, or any portion thereof, including without limitation, Borrower's rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to LenderAgent's and any Guarantor's sale of participation, sale, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Guaranty Documents or of any portion hereof thereof or thereofinterest therein, including Lenderincluding, without limitation, Agent's and any Guarantor's rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best efforts to assist and cooperate with Lender Agent and any Guarantor in any manner reasonably requested by Lender Agent or such Guarantor to effect the sale of participations participation in or assignments assignment of any of the Loan Guaranty Documents or of any portion thereof or interest therein, including, without limitation, assistance in the preparation of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Guarantors and such Guarantor's respective commitments. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Guarantor retains its voting rights, no Guarantor shall sell participation or assign, transfer or otherwise dispose of any of the Guaranty Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent, which shall not be unreasonably withheld.
(b) In respect to any assignment by a Guarantor of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Guaranty provided by it (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the preparation case of appropriate disclosure documents. Borrower further agrees that Lender may disclose credit information regarding an assignment of all of a Guarantor's rights and obligations under this Agreement, (A) the aggregate amount of the Guaranty Commitments of the assigning Guarantor being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than USD $100,000, and in integral multiples of USD $100,000 thereafter, or such lesser amount as to which Borrower and the Agent may consent to and (iii) the parties to each such assignment shall execute and deliver to the Agent, for its Subsidiaries acceptance, an Assignment and Acceptance in the form and substance satisfactory to the assigning Guarantor and the Agent (an "Assignment and Acceptance"), together with any Guaranty subject to such assignment and a processing and recordation fee of $3,500. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance (x) 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 and Acceptance, have the rights and obligations of a Guarantor hereunder and (y) the Guarantor assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Guarantor's rights and obligations under this Agreement, such Guarantor shall cease to be a party hereto).
(c) Any Guarantor may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of any Loan Party (a "Participating 35 40 Guarantor") participating interests in any Loans, the commitments of that Guarantor and the other interests of that Guarantor (the "Originating Guarantor") hereunder and under the other Guaranty Documents; provided, however, that (i) the originating Guarantor's obligations under this Agreement shall remain unchanged, (ii) the originating Guarantor shall remain solely responsible for the performance of such obligations, and (iii) Borrower and the Agent shall continue to deal solely and directly with the originating Guarantor in connection with the originating Guarantor's rights and obligations under this Agreement and the other Guaranty Documents. In the case of any participation, the Participating Guarantor shall not have any rights under this Agreement or any of the other Guaranty Documents entered into in connection herewith (the Participating Guarantor's right against such Guarantor in respect of such participation to be those set forth in the participation or other agreement executed by such Guarantor and the Participating Guarantor relating thereto). In no event shall any Participating Guarantor grant a participation in its participation interest in the Guaranty without the prior written consent of Agent, which approval shall not be unreasonably withheld. All amounts payable by Borrower hereunder shall be determined as if the originating Guarantor had not sold any such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participating Guarantor shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Guarantor under this Agreement.
(d) [Intentionally Omitted].
(e) No amendment or waiver of any provision of this Agreement or any other Guaranty Document, nor consent to any potential Participant departure by Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Guarantors, and then such waiver or assigneeconsent shall be effective only in the specific instance and for the specific purpose for which given; provided, however: (a) that no amendment, waiver or consent shall, unless in writing and signed by each Guarantor affected thereby do any of the following: (i) subject any Guarantor to any additional obligations, (ii) increase the Guaranty Commitment or Guaranty Percentage of any Guarantor, (iii) postpone any date fixed for any payment of any amounts payable hereunder, (iv) reduce the number of Guarantors which shall be required for the Guarantors or any of them to take any action hereunder, (v) release or discharge any Person liable for the performance of any obligations of Borrower hereunder or under any of the Guaranty Documents, (vi) to the extent Agent's or Guarantors' consent is required by the terms hereof, release all or substantially all of the Collateral or (viii) amend this Section 12.3; (b) that no amendment, waiver or consent shall be effective unless in writing and signed by either Required Guarantors or all Guarantors, as required by the terms hereof and, if such amendment, waiver or consent affects Agent or its rights hereunder, Agent.
Appears in 1 contract
Samples: Guaranty Facility and Security Agreement (Aperian Inc)
Modification of Agreement; Sale of Interest. This Agreement (a) The Loan Documents constitute the complete agreement between the parties with respect to the subject matter hereof and may not be modified, altered or amended, amended except by an agreement in writing signed by Borrower and LenderBorrower, Required Lenders and, if required by the terms hereof, Agent. Borrower may not sell, assign or transfer any interest in this Agreement, any of the other Loan Documents, or any of the Obligations, Documents or any portion thereof, including without limitation, Borrower's rights, title, interests, remedies, powers, powers and duties hereunder or thereunder. Borrower hereby consents to Agent's and any Lender's sale of participation, sale, assignment, transfer or other dispositiondisposition in accordance with the terms hereof, at any time or times hereaftertimes, of this Agreement and any of the other Loan Documents, Documents or of any portion hereof thereof or thereofinterest therein, including including, without limitation, Agent's and any Lender's rights, title, interests, remedies, powerspowers or duties thereunder, and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent whether evidenced in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been given. In the case of an assignment, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder and Lender shall be relieved of all obligations hereunder upon any such assignment. or not; Borrower agrees that it will use its best commercially reasonable efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of participations participation in or assignment of any of the Loan Documents or of any portion thereof or interest therein, including, without limitation, assistance in the preparation of appropriate disclosure documents or placement memoranda and executing appropriate amendments to the signature pages hereto to reflect the addition of any Lenders and such Lender's respective commitments. The foregoing notwithstanding, except with respect to sales, assignments or transfers to Affiliates under common control pursuant to which the selling, assigning or transferring Lender retains its voting rights, no Lender shall sell participation or assign, transfer or otherwise dispose of any of the Loan Documents or any portion thereof or interest therein, including assisting without the prior written consent of Agent and, if no Event of Default has occurred and is continuing in respect to sales and assignments, Borrower, which consent, in either case, shall not be unreasonably withheld or delayed. VPCHI01/#254442.6 2/2/98 44
(b) In respect to any assignment by a Lender of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Revolving Loan Commitments, the Revolving Credit Loans owed to it and the Revolving Credit Note held by it, all or a portion of the Acquisition Loan Commitments, Acquisition Loans owned to it and the Acquisition Note(s) held by it and the Acquisition Term Loan owed to it and the Acquisition Term Loan Note(s) held by it) (i) each such assignment shall be of a uniform, and not a varying, percentage of all rights and obligations, (ii) except in the preparation case of appropriate disclosure documentsan assignment of all of a Lender's rights and obligations under this Agreement, (A) the aggregate amount of the Revolving Loan and Acquisition Loan Commitments and Acquisition Term Loan of the assigning Lender being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or such lesser amount as to which Borrower and the Agent may consent to and (B) after giving effect to each such assignment, the amount of the Revolving Loan and Acquisition Loan Commitments and Acquisition Term Loan of the assigning Lender shall in no event be less than $5,000,000, (iii) the parties to each such assignment shall execute and deliver to the Agent, for its acceptance, an Assignment and Acceptance in the form of Exhibit R hereto (an "Assignment and Acceptance"), together with any Revolving Credit Note, Acquisition Note(s) or Acquisition Term Note(s) subject to such assignment and a processing and recordation fee of $3,500, and (iv) any Lender may without the consent of Borrower or the Agent, and without paying any fee, assign to any Affiliate of such Lender that is a bank or financial institution all of its rights and obligations under this Agreement. The foregoing notwithstanding, no Person may become a Lender or a Participating Lender hereunder, unless such Person is a financial institution having stockholders' equity (or the equivalent) of at least One Hundred Million Dollars ($100,000,000) and, in respect to Lenders, such Person has been approved by Borrower, which approval shall not be unreasonably withheld or delayed. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in such Assignment and Acceptance (x) 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 and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). If, pursuant to this Section 12.3, any interest in this Agreement or any Revolving Credit Loan, Acquisition Loan or the Acquisition Term Loan, Notes, Letter of Credit or LC Guaranty is transferred to any transferee which is organized under the laws of any jurisdiction other than the United States or any state thereof, the transferor Lender shall cause such transferee (other than any Participating Lender), and may cause any Participating Lender, concurrently with the effectiveness of such transfer, (a) to represent to the transferor Lender (for the benefit of the transferor Lender, Agent, and Borrower) that under applicable law and treaties no Taxes will be required to be withheld by Agent, Borrower further agrees or the transferor Lender with respect to any payments to be made to such transferee in respect of the Revolving Credit Loans, Acquisition Loans, Acquisition Term Loans, Notes, Letters of Credit or LC Guaranties, (b) to furnish to the transferor Lender, Agent and Borrower either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such transfer VPCHI01/#254442.6 2/2/98 45 claims entitlement to complete exemption form U.S. federal withholding tax on all interest payments hereunder), and (c) to agree (for the benefit of the transferor Lender, Agent and Borrower) to provide the transferor Lender, Agent and Borrower a new Form 4224 or Form 1001 upon the obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by such transferee, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption.
(c) In the event any Lender assigns or otherwise transfers all or any part of its Revolving Credit Note, Acquisition Note(s) or Acquisition Term Note any such Lender shall so notify Borrower and Borrower shall, upon the request of such Lender, issue new Revolving Credit Notes, Acquisition Notes and Acquisition Term Notes in exchange for the old Revolving Credit Notes, Acquisition Notes and Acquisition Term Notes.
(d) Any Lender may at any time sell to one or more commercial banks, financial institutions, or other Persons not Affiliates of Borrower (a "Participating Lender") participating interests in any Loans, the commitments of that Lender may disclose credit information regarding and the other interests of that Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) Borrower and the Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall grant any participation under which the Participating Lender shall have rights to approve any amendment to or waiver of this Agreement or the Loan Documents, except to the extent such amendment or waiver would: (A) extend the final maturity date for payment of the Loans in which such Participating Lender is participating; (B) reduce the interest rate or the amount of principal or fees applicable to the Loans in which such Participating Lender is participating; or (C) release all or substantially all of the Collateral, except as expressly provided herein. In those cases in which an originating Lender grants rights to a Participating Lender to approve any amendment to or waiver of this Agreement or the other Loan Documents respecting the matters described in clauses (A) through (C) of the preceding sentence, the relevant participation agreements shall provide for a voting mechanism whereby a majority of the amount of such Lender's portion of the Loans (irrespective of whether held by such Lender or a Participating Lender) shall control the vote for all of such Lender's portion of the Loans. In the case of any participation, the Participating Lender shall not have any rights under this Agreement or any of the other Loan Documents entered into in connection herewith (the Participating Lender's right against such Lender in respect of such participation to be those set forth in the participation or other agreement executed by such Lender and the Participating Lender relating thereto). In no event shall any Participating Lender grant a participation in its Subsidiaries participation interest in the Loans without the prior written consent of Agent, which approval shall not be unreasonably withheld or delayed. All amounts payable by the Borrower hereunder shall be determined as if the originating Lender had not sold any such participation, except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participating Lender shall be deemed to have the right of set-off in VPCHI01/#254442.6 2/2/98 46 respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Lender may at any time create a security interest in, or pledge, all or any portion of its rights under and interest in this Agreement in favor of any Federal Reserve Bank in accordance with Regulation A of the Board or U.S. Treasury Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such pledge or security interest in any manner permitted under applicable law.
(f) No amendment or waiver of any provision of this Agreement or the Notes or any other Loan Document, nor consent to any potential Participant departure by Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or assigneeconsent shall be effective only in the specific instance and for the specific purpose for which given; provided, however: (a) that no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby do any of the following: (i) increase the aggregate Revolving Loan Commitments, increase the aggregate Acquisition Loan Commitments or subject any Lender to any additional obligations, (ii) reduce the principal of, or decrease the rate of interest on, the Notes or other amount payable hereunder other than those payable only to FCC in its capacity as Agent which may be reduced by FCC unilaterally, (iii) postpone any date fixed for any payment of principal of, or interest on, the Notes or other amounts payable hereunder, other than those payable only to FCC in its capacity as Agent which may be postponed by FCC unilaterally, (iv) reduce the aggregate unpaid principal amount of the Notes, or the number of Lenders which shall be required for the Lenders or any of them to take any action hereunder, (v) release or discharge any Person liable for the performance of any obligations of Borrower hereunder or under any of the Loan Documents except in accordance with the terms of such Loan Documents or as otherwise permitted herein, (vi) subject to the provisions of Section 1.1.1(C) increase the advance rates contained in the definition of the Borrowing Base, (vii) to the extent Agent's or Lenders' consent is required by the terms hereof, release all or substantially all of the Collateral or (viii) amend this Section 12.3; (b) that no amendment, waiver or consent shall be effective unless in writing and signed by either Required Lenders or all Lenders, as required by the terms hereof and, if such amendment, waiver or consent affects Agent or its rights hereunder, Agent.
Appears in 1 contract
Modification of Agreement; Sale of Interest. This Agreement may not be modified, altered or amended, except by an agreement in writing signed by Borrower and Lender. Borrower may not sell, assign or transfer any interest in this Agreement, Agreement or any of the other Loan Documents, or any of the Obligations, or any portion thereof, including Borrower's rights, title, interests, remedies, powers, and duties hereunder or thereunder. Lender shall have the right to sell, assign, transfer or otherwise dispose of its right, title, interests. remedies, powers and duties hereunder and under any other Loan Documents, or to sell participation interests therein, at any time or from time to time, without first giving notice to, or obtaining the prior written consent of, Borrower, so long as (i) Lender retains at least a majority in interest in the rights, titles, interests, remedies, power and duties so conveyed, (ii) the Participating Lender is a Permitted Assignee (as hereinafter defined) and (iii) upon receiving such sale, assignment or participation, the Participating Lender becomes subject to the same terms, covenants and conditions as to which Lender is then subject hereunder, to the extent of sale, assignment or participation. As used herein, the term "Eligible Assignee" shall mean: (i) North Carolina Bank, Tennessee Bank or any other affiliate of Lender; (ii) any national bank or state-chartered bank domiciled in the United States of America, or any affiliate thereof, having total assets of at least $1,000,000,000; or (iii) any other Person(s) to which Borrower hereby consents to Lender's shall have consented in writing at any time. In the event of any such participation, sale, assignment, transfer or other disposition, at any time Lender is authorized to provide to each Participating Lender, assignee or times hereafter, of this Agreement and any of the other Loan Documents, or of any portion hereof or thereof, including transferee all information in Lender's rights, title, interests, remedies, powers, possession regarding Borrower and duties hereunder or thereunder to any Affiliate of Lender or any Person that purchases all or substantially all of the assets of Lender. Any other participation, sale, assignment, transfer or other disposition, at any time or times hereafter, of this Agreement and any of the other Loan Documents shall be subject to Borrower's prior consent, such consent not to be unreasonably withheld. If Lender requests such consent in writing and Borrower does not respond in writing within five (5) Business Days from the date of delivery of such request, the consent of Borrower shall be deemed to have been givenCollateral. In the case of an any such assignment, the assignee Person receiving such assignment, shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were "Lender" hereunder an original Lender hereunder, and Lender shall be relieved of all its obligations hereunder upon with respect to its assigned portion thereof. Borrower hereby acknowledges and agrees that any such assignment. assignment will give rise to a direct obligation of Borrower agrees to the Person receiving such assignment and that it will use its best efforts such Person, upon such assignment becoming effective, shall be considered to assist be a "Lender" or the "Lender" for all purposes of this Agreement and cooperate with Lender in any manner reasonably requested by Lender to effect the sale of participations in or assignments of any of the Loan Documents or any portion thereof or interest therein, including assisting in the preparation of appropriate disclosure documents. Borrower further agrees that Lender may disclose credit information regarding Borrower and its Subsidiaries to any potential Participant or assigneeDocuments.
Appears in 1 contract
