Pro Rata Participation. (a) Each Lender agrees that if, as a result of the exercise of a right of setoff, banker's lien or counterclaim or other similar right or the receipt of a secured claim it receives any payment in respect of the Secured Obligations, it shall promptly notify the Administrative Agent thereof (and the Administrative Agent shall promptly notify the other Lenders). If, as a result of such payment, such Lender receives a greater percentage of the Secured Obligations owed to it under this Agreement than the percentage received by any other Lender, such Lender shall purchase a participation (which it shall be deemed to have purchased simultaneously upon the receipt of such payment) in the Secured Obligations then held by such other Lenders so that all such recoveries of principal and interest with respect to all Secured Obligations owed to each Lender shall be pro rata on the basis of its respective amount of the Secured Obligations owed to all Lenders, PROVIDED that if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered by or on behalf of any Borrower from such Lender, such purchase shall be rescinded and the purchase price paid for such participation shall be returned to such Lender to the extent of such recovery, but without interest.
(b) Each Lender which receives such a secured claim shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this SECTION 16.23 to share in the benefits of any recovery on such secured claim.
(c) Each Borrower expressly consents to the foregoing arrangements and agrees that any holder of a participation in any Secured Obligation so purchased or otherwise acquired of which a Borrower has received notice may exercise any and all rights of banker's lien, set-off or counterclaim with respect to any and all monies owing by the Borrowers to such holder as fully as if such holder were a holder of such Secured Obligation in the amount of the participation held by such holder.
Pro Rata Participation. If any Executive elects to participate in the contemplated Transfer, the Transferring Securityholder and each Participating Securityholder shall be entitled and under an obligation to sell in the contemplated Transfer such number of Xxxx Securities and Vested Securities, respectively, as is equal to the product of: (i) the quotient determined by dividing the number of Xxxx Securities or Vested Securities (as applicable) held by such transferring Person by the aggregate number of Securities then issued and outstanding (but excluding all Unvested Securities); and (ii) the total number of Securities to be sold in the contemplated Transfer. The foregoing calculation shall be applied separately with respect to each type of Security. Each Participating Securityholder shall be required, to the extent possible, to transfer all of such Participating Securityholder’s Vested Securities of the same type and in the same proportion as the Xxxx Securities proposed to be transferred by the Transferring Securityholder pursuant to the Xxxx Investor Sale Notice. Notwithstanding the foregoing, an Executive may elect to participate in such Transfer only with respect to the Executive’s Co-Invest Securities and not the Executive’s Incentive Securities.
Pro Rata Participation. (a) If the Corporation shall issue (such issuance, including any Common Equity issued to Buyer pursuant to this Section 5.4, an ISSUANCE) any Common Equity (other than an issuance of Common Equity (i) pursuant to the Corporation's existing or future stock option plans or pursuant to any other existing or future director or employee compensation plan approved by the Board of Directors, (ii) as consideration for the acquisition of a business or of assets, (iii) to the Corporation's joint venture partners in exchange for interests in the relevant joint venture, (iv) upon conversion, exercise or exchange of Convertible Securities, (v) that would cause an adjustment under paragraph 8(g)(iii) of the Certificate of Determination, (vi) pursuant to any shareholders' rights plan or (vii) as dividends on any class of preferred stock of the Corporation), Buyer shall have the right to purchase for cash up to an amount of such Common Equity (PRO-RATA SECURITIES) on the same terms and at the same price as the issue price of such Common Equity (such price to be agreed by the Corporation and Buyer if such Common Equity is to be issued for consideration other than cash, and if the parties cannot agree on such price, the price shall be determined as provided in paragraph (c) of this Section 5.4) so that, after the Issuance, Buyer would own the same proportional interest of Common Stock in the aggregate (assuming conversion, exercise or exchange of all Convertible Securities) as is owned by it prior to the Issuance (assuming conversion, exercise or exchange of all Convertible Securities). The Corporation shall deliver written notice (a PRO-RATA NOTICE) to Buyer with respect to any Issuance subject to the provisions of this Section 5.4 not less than 10 days before the anticipated date of such Issuance. Buyer's right to purchase Pro-Rata Securities with respect to any Issuance of Common Equity shall terminate 10 business days after delivery of the Pro-Rata Notice. If Buyer timely elects to exercise its right to purchase Pro-Rata Securities, such election will constitute a binding offer to purchase and may not be revoked by Buyer; provided, however, that Buyer's obligation to acquire the Pro-Rata Securities will be subject to terms and conditions at least as favorable as those applicable to the Issuance giving rise to Buyer's rights under this Section 5.4 and to receipt of any necessary governmental approvals (and the parties agree to expeditiously seek and cooperate with respec...
Pro Rata Participation. At the time of any provision of Incremental Revolving Loan Commitments pursuant to this Section 2.15, each Revolving Borrower shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Revolving Lenders, and incur additional Revolving Loans from certain other Revolving Lenders (including the Incremental Revolving Lenders), in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 2.15) and with the Revolving Borrowers being obligated to pay to the respective Revolving Lenders any costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing.
Pro Rata Participation. Each Participating Securityholder shall be entitled to sell in the contemplated Transfer, on the same terms and conditions as the Bain Sellers, such number of its Securities as have a Pecuniary Value equal to the product of (i) the quotient determined by dividing the Pecuniary Value of Securities owned by such Person by the aggregate Pecuniary Value of all the Securities issued by the Company and (ii) the Pecuniary Value of all the Securities which the prospective transferee has agreed to acquire pursuant to the contemplated Transfer, and the Xxxx Sellers shall be entitled to sell the remaining Securities in the contemplated Transfer. Each Participating Securityholder shall be required, to the extent possible, to transfer Securities of the same type and in the same proportional strip as the Xxxx Securities proposed to be transferred pursuant to the Xxxx Sale Notice.
Pro Rata Participation. Holders may exercise their rights under section 3.3 to develop Commercial Projects in the United States, under section 3.4 to participate in place of the Company, under section 3.5 to market K-Fuel Products and under section 3.6 to develop Commercial Projects in India and otherwise obtain any and all rights relating to the K-Fuel Technology within India as described in section 3.6, as follows: If Holder(s) who purchased more than more than twenty-five percent of the Registrable Securities pursuant to the Purchase Agreement (the "Proposing Holders") elect to exercise their rights under any of sections 3.3, 3.4, 3.5 or 3.6, then the Proposing Holders shall notify the other Holders in writing of the terms of any proposal (the "Proposal") for the exercise of such rights, including the name of the Proposing Holder (the "Proposal Manager") to whom such Holders should deliver their responding notices described in the following sentence. Within fifteen days after receipt of the Proposal, each Holder (including each Proposing Holder) shall notify the Proposal Manager whether it elects to participate in the Proposal and specify the Holder's desired participation percentage in the Proposal.
Pro Rata Participation. (a) Subject to the remaining provisions of this Clause 2 each Lender shall participate in each Advance to be made under the Facility in the proportion borne by its Commitment to the Total Commitments (the "AGREED PROPORTIONS").
(b) Each Lender shall participate in the first Advance made under Tranche A as follows: LENDER AMOUNT OF TRANCHE A FIRST ADVANCE -------------------------------------------------------------------------------------- ICBC Beijing Branch 13,500,000.00 ICBC Shanghai Branch 9,000,000.00 [Facility Agreement] ICBC Hong Kong Branch 4,500,000.00 China Minsheng Banking Corp. Ltd. 0.00 CITIC Industrial Bank 3,333,333.33 Bank of Communications 1,666,666.67 Huaxia Bank 1,666,666.67 TOTAL 33,666,666.67
(c) For each subsequent Tranche A Advance, each Lender shall participate in that Tranche A Advance in such amounts determined by the Facility Agent (acting reasonably) as will as quickly as possible, result in each Lender's proportion of the Tranche A Advances being in the Agreed Proportions and thereafter, each Lender shall participate in any Tranche A Advance in accordance with Clause 2.2 (a) above PROVIDED THAT no Lender shall be obliged to participate for more than its Tranche A Commitment.
Pro Rata Participation. 31 12.13 COUNTERPARTS..................................................31 12.14 GOVERNING LAW; CONSENT TO JURISDICTION........................31 12.15 WAIVER OF TRIAL BY JURY.......................................32 Exhibits: Exhibit A - - Form of Borrower's Secretary's Certificate (Section 1.1) Exhibit B - - Form of Borrower's CEO's Certificate (Section 1.1) Exhibit C - - Form of Opinion (Section 1.1) Exhibit D - - Form of Escrow Agreement (Section 1.1) Schedules: Schedule 1 - - Liens (Section 8.2) Schedule 2 - - Trademarks, Trade Names, Name Changes, etc. (Sections 6.10 and 6.19) Schedule 3 - - Litigation (Section 6.11) AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT This Agreement is made as of the 12th day of August, 1997, between NationsBank, N.A., as successor to NationsBank of Georgia, N.A. ("NationsBank"), and Hibernia National Bank ("Hibernia"), as lenders (the "Lenders"), NationsBank, N.A., as agent for the Lenders (the "Agent"), and Emergent Business Capital, Inc., a South Carolina corporation (the "Borrower").
Pro Rata Participation. (i) As long as Buyer holds at least 1,000,000 shares of Common Stock of the Company, the Company shall permit Buyer to purchase its pro rata share of New Securities (as defined below) on terms and conditions that are equal to those offered by the Company in a subsequent sale of New Securities after the date of this Agreement. Buyer’s pro rata share, for purposes of this Section 4(m), is equal to the ratio of (a) the number of shares of Common Stock owned by Buyer immediately prior to the issuance of New Securities to (b) the total number of shares of Common Stock outstanding. Buyer may assign its right of participation hereunder to any person to which Buyer may transfer registration rights pursuant to the terms of the Registration Rights Agreement. “New Securities” shall mean any capital stock of the Company whether now authorized or not, and rights, convertible securities, options or warrants to purchase such capital stock, and securities of any type whatsoever that are, or may become, exercisable or convertible into capital stock; provided that the term “New Securities” does not include: (A) the Yield Enhancement Shares issued pursuant to this Agreement; (B) shares of Common Stock and options, warrants or other rights to purchase Common Stock issued to employees, officers or directors of, or consultants or advisors to, the Company or any Subsidiary pursuant to restricted stock purchase agreements, stock option plans or similar arrangements approved by the Board of Directors; (C) securities issued pursuant to the conversion or exercise of any convertible securities, options or warrants outstanding as of this date of this Agreement; (D) securities issued pursuant to a qualified public offering; (E) shares of Common Stock issued or issuable pursuant to the acquisition of another corporation or entity by the Company by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided, that such issuances are approved by the Board of Directors of the Company; or (F) shares of Common Stock issued or issuable to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board of Directors of the Company.
Pro Rata Participation. Holders may exercise their rights under section 3.3 to develop Commercial Projects in the United States, under section 3.4 to participate in place of the Company, under section 3.5 to market K-Fuel Products and under section 3.6 to develop Commercial Projects in India and otherwise obtain any and all rights relating to the K-Fuel Technology within India as described in section 3.6, as follows:
(a) If Holder(s) who purchased more than more than twenty-five percent of the Registrable Securities pursuant to the Purchase Agreement (the “Proposing Holders”) elect to exercise their rights under any of sections 3.3, 3.4, 3.5 or 3.6, then the Proposing Holders shall notify the other Holders in writing of the terms of any proposal (the “Proposal”) for the exercise of such rights, including the name of the Proposing Holder (the “Proposal Manager”) to whom such Holders should deliver their responding notices described in the following sentence. Within fifteen days after receipt of the Proposal, each Holder (including each Proposing Holder) shall notify the Proposal Manager whether it elects to participate in the Proposal and specify the Holder’s desired participation percentage in the Proposal.
(b) Each Holder (including each Proposing Holder) electing to participate in a Proposal shall be entitled to participate in such Proposal to the extent of that Holder’s desired participation percentage set forth in its notice to the Proposal Manager unless the sum of the participating Holders’ (including the Proposing Holders’) specified participation percentages exceeds one hundred percent. If the sum of the participating Holders’ (including the Proposing Holders’) specified participation percentages exceeds one hundred percent, then
(i) each participating Holder shall be granted a participation percentage equal to its pro rata share (or any portion thereof if such Holder specifies a participating percentage less than its pro rata share) of the Proposal, and (ii) if, after the allocation in clause (i) (and, if necessary, in this clause (ii)), any portion of the Proposal has not been allocated, each Holder that shall have specified a greater participation percentage than it shall have been allocated under clause (i) (and, if necessary, under this clause (ii)) shall be granted a fraction of the remaining participation percentage of the Proposal, the numerator of which is the number of shares of Registrable Securities purchased pursuant to the Purchase Agreement by such Holder (...
