Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender. (b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 4 contracts
Samples: Credit Agreement (DTLR Holding, Inc.), Credit Agreement (DTLR Holding, Inc.), Credit Agreement (DTLR Holding, Inc.)
Amendment and Waivers. No amendment or modification of any provision of this Agreement shall be effective without the written agreement of Required Lenders (aafter notice to all Lenders, which notice may be oral) Except as otherwise and Borrowers, and no termination or waiver of any provision of this Agreement, or consent to any departure by Borrowers therefrom, shall in any event be effective without the written concurrence of Required Lenders (after notice to all Lenders, which notice may be oral), which Required Lenders shall have the right to grant or withhold at their sole discretion, except that any amendment, modification or waiver of any provision of Section 2 hereof relating to any increase of the Commitments or any Lender's Commitment, to the principal amount, amortization and final maturity of the Loans, to the reduction of interest rates applicable to the Loans, to the rates at which the fees payable to the Agent for the ratable benefit of the Lenders pursuant hereto are determined, to the forgiveness of any amount payable or receivable under Section 2, to the definition of "Required Lenders" and "pro rata", to the level of consent required to release Collateral, and to the provisions contained in this Section 12.D shall be effective only if evidenced by a writing signed by or on behalf of all Lenders, provided hereinthat notwithstanding the foregoing, no the consent or approval of a Lender will not be required if such amendment, modification or waiver does not affect such Lender. No amendment, modification, termination or waiver of any provision of this Agreement Section 11 hereof or any other Loan Document, or consent provision referring to any departure by the Credit Parties or any of them therefrom, Agent shall be effective unless without the same written concurrence of Agent. Agent may, but shall be in writing and signed by Requisite Lenders (have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (consents on behalf of all Borrowers) such Lender. Any waiver or all Borrowers; provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless only in writing the specific instance and signed by Agent, (B) Documentation Agent under for the specific purpose for which it was given. No notice to or demand on Borrowers in any Loan Document case shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment entitle Borrowers to any Fee Letter may be amended, further notice or rights demand in similar or privileges thereunder waived, in a writing executed only by the parties theretoother circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 12.D. shall be binding upon on each assignee, transferee or recipient of Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement 's or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products 's Commitment or the Obligations owing thereunder, nor shall Loans at the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Partytime outstanding.
Appears in 3 contracts
Samples: Credit Agreement (Stericycle Inc), Credit Agreement (Stericycle Inc), Credit Agreement (Continental Waste Industries Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or No waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or Borrower therefrom shall in any of them therefrom, shall event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of an Advance shall not be construed as a waiver of any Default or Event of Default, regardless of whether Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified (except pursuant to an agreement or agreements in writing entered into by Borrower and signed the Agent), except for an amendment to increase the Maximum Revolving Loan Amount in accordance with Section 2.14 hereof, such amendment to require the consent of Agent and such Lenders so increasing their Revolving Loan Commitment, or by Requisite Lenders (or Borrower and Agent at with the direction consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers, without taking into account the Loans held by Non-Funding Lenders; provided, provided that no amendment, modification, termination or waiver such agreement shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: :
(i) increase the Revolving Loan Commitment or Term Loan Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); without the written consent of such Lender;
(ii) reduce the principal of, rate (or cash rate) amount of interest on or fees payable with respect to any Loan or reduce the rate of interest thereon (other Obligation; than a waiver of post-default interest), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby;
(iii) extend postpone the scheduled due datedate of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount due on of, waive or excuse any scheduled due datesuch payment, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; scheduled date of expiration of any Revolving Loan Commitment or Term Loan Commitment, without the written consent of each Lender directly affected thereby,
(iv) change the percentage any of the Commitments, provisions of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed any other provision hereof specifying the number or percentage of Lenders required to directly affect all Lenders); (ix) subordinate the Obligations waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the Liens granted hereunder or under the other Loan Documents, to written consent of each Lender;
(v) release any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and Guarantor from its obligations under any Loan Documenta Guaranty without the written consent of each Lender; and providedor
(vi) except as otherwise specifically provided in this Agreement, furtherrelease all or substantially all of the Collateral, without the written consent of each Lender; provided further that no amendmentsuch agreement shall amend, modification, termination modify or waiver affecting otherwise affect the rights or duties of Agent hereunder without the prior written consent of Agent.
(Ac) Agent under Notwithstanding the foregoing, this Agreement and any other Loan Document shall may be effective unless amended (or amended and restated) with the written consent of the Requisite Lenders, Agent and Borrower (x) to add one or more credit facilities to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in writing respect thereof to share ratably in the benefits of this Agreement and signed by Agent, (B) Documentation Agent under any the other Loan Document shall be effective unless Documents with the Loan and the accrued interest and fees in writing and signed by Documentation Agent, respect thereof and (Cy) L/C Issuer under to include appropriately the Lenders holding such credit facilities in any Loan Document shall be effective unless in writing determination of the Requisite Lenders and signed by L/C IssuerLenders.
(d) If, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to connection with any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any proposed amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then Agent or Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to Agent shall agree, as of such date, to purchase for cash the principal balance of the Loans due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (a) of Section 12.2, and (ii) Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by Borrower hereunder to and including the date of termination, including without limitation any indemnity payments due to such Non-Consenting Lender hereunder for which the amount is known.
(be) Notwithstanding anything to the contrary in herein Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan DocumentsDocuments to cure any ambiguity, including as to any matter relating to the Collateral omission, mistake, defect or the release of Collateral or any Credit Partyinconsistency.
Appears in 3 contracts
Samples: Loan and Security Agreement (Katapult Holdings, Inc.), Loan and Security Agreement (Katapult Holdings, Inc.), Loan and Security Agreement (Katapult Holdings, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of this Agreement or any other Loan Document, or nor consent to any departure by the Credit Parties or any of them Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (the Required Lenders, and then such waiver or Agent at consent shall be effective only in the direction of specific instance and for the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersspecific purpose for which given; provided, however, that no amendment, modification, termination waiver or waiver shall, consent shall (a) unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment amount or extend the expiration date of any individual Lender (which action shall be deemed to directly affect all Lenders); Lender’s Commitment, (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any on, the Loan or other Obligation; amounts payable hereunder, or (iii) extend the scheduled due datepostpone any date fixed for any payment of principal of, or reduce interest on, the amount due on any scheduled due date, of any installment of principal, interest Loan or fees other amounts payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereofhereunder; (ivb) unless in writing and signed by all of the Lenders, do any of the following: (i) change the percentage Commitment Percentage of the Commitments, any Lender or of the aggregate unpaid principal amount of the LoansLoan, or the number of the Lenders which that shall be required for Lenders, Agent the Lenders or any of them to take any action hereunder hereunder, (which action shall be deemed to directly affect all Lendersii) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion substantially all of the Collateral or release any Guarantor from its obligations under the Guarantee and Collateral Agreement, (which action shall be deemed to directly affect all Lendersiii) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or amend this Section 10.4 11.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” Required Lenders”, or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”iv) if as a result thereof the amounts available to be borrowed by Borrowers would be increased release Borrower from all of its obligations hereunder; or (which action shall be deemed to directly affect all Lendersc) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, the Agent (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to the Lenders required hereinabove above to take such action; and provided), furtheras applicable, that no amendment to amend, modify or waive any Fee Letter may be amended, provision of Section 10 hereof or affect the rights or privileges thereunder waived, in a writing executed only by duties of the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in Agent under this Agreement or any other Loan Document. In addition, no provider or holder provision of any Bank Products or Cash Management Services shall this Agreement pursuant to which the GS Funds have any voting rights or approval rights hereunder (benefits may be amended, waived, supplemented or be deemed a Lender) solely by virtue of its status as otherwise modified without the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the prior written consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit PartyGS Funds.
Appears in 2 contracts
Samples: Debtor in Possession Loan Agreement (Ener1 Inc), Restructuring Agreement (Ener1 Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination termination, or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them Borrowers therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) , Agent and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders)such Lender; (ii) reduce the principal of, rate (or cash rate) of interest (other than default interest) on or fees payable with respect to any Loan or other ObligationLoan; (iii) extend the scheduled due date, date or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under with respect to any Loan DocumentLoan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial any material portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation continuance of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunderAgent); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders)10.4; (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party Borrowers or any other party (other than any Lender) to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and or (viii) increase the Advance Rate or change the definition of Eligible Receivables or Borrowing Base; and, provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall in any event be effective effective, unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove herein above to take such action; .
(b) Each amendment, modification, termination or waiver shall be effective only in the specific instance and providedfor the specific purpose for which it was given. No amendment, furthermodification, that no amendment termination or waiver shall be required for Agent to take additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Loan Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrowers.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Skilled Healthcare Group Inc), Revolving Credit and Security Agreement (Skilled Healthcare Group Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver No provision of any provision Loan Document may be changed, amended, modified, terminated, restated, waived, supplemented, discharged or cancelled orally or by any course of this Agreement dealing or in any other Loan Documentmanner, or and no consent to any departure by the Credit Parties or any of them therefrom, Borrower therefore shall be effective unless the same effective, other than by a written agreement signed by Borrower, Agent and Requisite Lenders; provided, that no consent or agreement by Borrower shall be in writing required to amend, modify, change, restate, waive, supplement, discharge, cancel or terminate any provision of Article 12 (other than subparagraph (g) thereof) so long as no additional duties are required to be assumed by Borrower; and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; providedprovided further, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: following and that the agreement of Borrower shall not be required for any amendment, modification, termination, or waiver that does any of the following (other than item (vi) below to the extent adverse to Borrower and unless any of the following would increase any commitment fee owing by Borrower): (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other ObligationLoan; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under with respect to any Loan DocumentLoan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.;
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Redenvelope Inc), Revolving Credit and Security Agreement (Redenvelope Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, prior to the Senior Facility Termination Date, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything in this Agreement to the contrary, without the approval of the Requisite Term Loan D Lenders, the Credit Parties, the Agent and the Lenders may not (i) amend or otherwise modify, in a manner adverse to the Term Loan D Lenders, the definitions of the terms “Commitment”, “Lenders”, “Loans”, “Obligations”, “Pro Rata Share”, “Requisite Lenders”, “Senior Facility Termination Date”, “Term Loan D”, “Term Loan D Lenders”, “Term Loan D Note”, “Term Loan D Obligations”, “Term Loan D PIK Rate”, “Term Loan D Requisite Lenders” or “Total Obligations”, (ii) amend or otherwise waive or modify, in a manner adverse to the Term Loan D Lenders, Sections 2.2(b), 2.5(a)(iii), 2.5(b), 2.9(g), 9.2, 10.4(b), 11.1(g), 11.1(h) (to the extent any such amendment or modification is with respect to the release of Collateral) or 11.2(g), provided, that this clause (ii) shall not prohibit or otherwise restrict the Agent and/or the Lenders from allowing a third party to receive proceeds of Collateral, prior to the Senior Facility Termination Date, for application to obligations owed to such third party, (iii) amend or otherwise waive or modify Sections 11.1(e) and 11.2(e) to the extent any such amendment or modification would increase the indemnification obligations of the Term Loan D Lenders, or (iv) amend or otherwise waive or modify Article XIV or any Guaranty to the extent such amendment or modification would release any Guarantor from liability under Article XIV or its Guaranty or reduce the liability of any Guarantor, in each such case, to the extent such amendment, waiver or modification is with respect to its guarantee obligations for the Term Loan D Obligations, provided, that, notwithstanding the foregoing, the Agent and/or the Requisite Lenders may release any Guarantor from its obligations to guarantee the Obligations and the Term Loan D Obligations in connection with any sale or other disposition of the capital stock of, or all or substantially all of the assets of, any Guarantor, whether by merger, consolidation, amalgamation or otherwise, whether or not an Event of Default has occurred or is continuing. Notwithstanding anything to the contrary in this Agreement the immediately preceding sentence or any other provision in the Loan DocumentDocuments, no provider or holder solely for purposes of any Bank Products or Cash Management Services voting on amendments, waivers, modifications and consents with respect to the Loan Documents, prior to the Senior Facility Termination Date, the Term Loan D Lenders shall have any voting or approval rights hereunder (or be deemed not to be a “Lender) solely by virtue of its status as ” and the provider or holder of Term Loan D shall be deemed to be zero and the Agent and/or the Requisite Lenders may release the Liens on the Collateral to the extent the Liens on such agreements or products or Collateral are released both with respect to the Obligations owing thereunderand the Term Loan D Obligations. Except as otherwise provided in this Section 10.4(b), nor shall prior to the Senior Facility Termination Date, the Lenders may amend, modify or waive any term or provision of the Loan Documents without the consent of any Term Loan D Lender, and the effectiveness of any such provider amendment, modification or holder be required (other than in their capacities as waiver shall not require any action by any Term Loan D Lender. Without the prior written consent of the Requisite Term Loan D Lenders, the Lenders may not amend or otherwise modify any term or provision set forth in Article XII. Agent will provide prompt written notice to the extent applicable) for Term Loan D Lenders of any matter hereunder amendment to or under any waiver or modification of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral Credit Agreement or any Credit PartyLoan Document.
Appears in 2 contracts
Samples: Credit Agreement (DTLR Holding, Inc.), Credit Agreement (DTLR Holding, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination termination, or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other ObligationLoan; (iii) extend the scheduled due date, date or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under with respect to any Loan DocumentLoan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder); (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial any material portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation continuance of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunderAgent); (vi) amend, modify or waive Section 9.2 or this Section 10.4 10.5 or the definitions of the terms used in Section 9.2 or this Section 10.4 10.5 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 10.5 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party Borrower or any other party (other than any Lender) to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and or (viii) increase the Advance Rate or change the definition of Eligible Billed Receivables, Eligible Unbilled Receivables or Borrowing Base; and, provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall in any event be effective effective, unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove herein above to take such action; .
(b) Each amendment, modification, termination or waiver shall be effective only in the specific instance and providedfor the specific purpose for which it was given. No amendment, furthermodification, that no amendment termination or waiver shall be required for Agent to take additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Loan Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrower.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (America Service Group Inc /De), Revolving Credit and Security Agreement (America Service Group Inc /De)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure To the fullest extent permitted by the Credit Parties DGCL, the Merger Agreement may be amended by the parties by action taken by or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) their respective boards of directors at any time prior to the Effective Time, provided that any such amendment that changes the Offer Price or all Borrowers; providedthe Merger Consideration must also be approved by the Special Committee. At any time prior to the Effective Time, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of party to the following: Merger Agreement may (i) increase extend the Commitment time for the performance of any individual Lender (which action shall be deemed obligation or other act of another party to directly affect all Lenders); the Merger Agreement, (ii) reduce waive any inaccuracy in the principal of, rate (representations and warranties of another party contained in the Merger Agreement or cash rate) of interest on or fees payable with respect in any document delivered pursuant to any Loan or other Obligation; the Merger Agreement and (iii) extend waive compliance with any agreement of another party or condition to its own obligations contained in the scheduled due dateMerger Agreement, provided that, if Hertz seeks to make such extension or reduce waiver as provided in clause (i), (ii) or (iii) above, it must first obtain the amount due on approval of the Special Committee. Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the party or parties to be bound. Under Section 262 of the DGCL, any scheduled due date, holder of Shares at the Effective Time (a “Remaining Stockholder”) who does not wish to accept the Merger Consideration pursuant to the Merger has the right to seek an appraisal and be paid the “fair value” of its Shares at the Effective Time (exclusive of any installment element of principal, interest value arising from the accomplishment or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage expectation of the Commitments, Merger) judicially determined and paid to it in cash provided that such holder complies with the provisions of such Section 262 of the aggregate unpaid principal amount DGCL. The following is a brief summary of the Loans, or statutory procedures to be followed by a Remaining Stockholder in order to dissent from the Merger and perfect appraisal rights under Delaware law. This summary is not intended to be complete and is qualified in its entirety by reference to Section 262 of the Lenders DGCL, the text of which shall is set forth in Annex C hereto. Any Remaining Stockholder considering demanding appraisal is advised to consult legal counsel. Dissenters’ rights will not be required available unless and until the Merger is consummated. Remaining Stockholders of record who desire to exercise their appraisal rights must fully satisfy all of the following conditions. A written demand for Lenders, Agent or any appraisal of them Shares must be delivered to take any action hereunder the Secretary of Hertz (which action shall be deemed to directly affect all Lendersx) before the taking of the vote on the approval and adoption of the Merger Agreement if the Merger is being consummated following approval thereof at a meeting of Xxxxx’x stockholders (a “long-form merger”) or alter, as between or among (y) within 20 days after the Revolving Lenders date that the Surviving Corporation mails to the Remaining Stockholders a notice (the “Notice of Merger”) to the effect that the Merger has been approved and/or is effective and Term Lenders, the amount payable to each hereunder; that appraisal rights are available (v) except as otherwise permitted herein or and includes in the other Loan Documents, release any Guaranty or release all or such notice a substantial portion copy of Section 262 of the Collateral DGCL and any other information required thereby) if the Merger is being effected without a vote or meeting of Xxxxx’x stockholders either in a Short-Form Merger pursuant to Section 253 of the DGCL or otherwise by stockholder written consent without a meeting of stockholders (both of which action shall are referred to in this discussion as a “Short-Form Merger”). If the Merger is effected as a long-form merger, this written demand for appraisal of Shares must be deemed in addition to directly affect all Lenders) (providedand separate from any proxy or vote abstaining from or against the approval and adoption of the Merger Agreement, that consent and neither voting against, abstaining from voting, nor failing to vote on the Merger Agreement will constitute a demand for appraisal within the meaning of Section 262 of the DGCL. In the case of a long-form merger, any stockholder seeking appraisal rights must hold the Shares for which appraisal is sought on the date of the making of the demand, continuously hold such release shall not be required if such release is made after Shares through the occurrence Effective Time, and during the continuation of an Event of Default in connection otherwise comply with the sale or disposition provisions of Section 262 of the Collateral that is consented to by Agent and Documentation Agent DGCL. Any holder of Shares who votes or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions delivers a written consent in favor of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or LienMerger Agreement, as the case may be, will lose appraisal rights under Section 262. In the case of both a Short-Form Merger and a long-form merger, a demand for appraisal must be executed by or for the stockholder of record, fully and correctly, as such stockholder’s name appears on the stock certificates. If Xxxxxx are owned of record in a fiduciary capacity, such as by a trustee, guardian or custodian, such demand must be executed by the fiduciary. If Shares are owned of record by more than one person, as in a joint tenancy or tenancy in common, such demand must be executed by all joint owners. An authorized agent, including an agent for two or more joint owners, may execute the demand for appraisal for a stockholder of record; and/or (x) consent however, the agent must identify the record owner and expressly disclose the fact that, in exercising the demand, he is acting as agent for the record owner. A record owner, such as a broker, who holds Shares as a nominee for others, may exercise appraisal rights with respect to the assignment Shares held for all or less than all beneficial owners of Shares as to which the holder is the record owner. In such case the written demand must set forth the number of Shares covered by such demand. Where the number of Shares is not expressly stated, the demand will be presumed to cover all Shares outstanding in the name of such record owner. Beneficial owners who are not record owners and who intend to exercise appraisal rights should instruct the record owner to comply strictly with the statutory requirements with respect to the exercise of appraisal rights before the date of any meeting of stockholders of Hertz called to approve the Merger in the case of a long-form merger and within 20 days following the mailing of the Notice of Merger in the case of a Short-Form Merger. Remaining Stockholders who elect to exercise appraisal rights must mail or deliver their written demands to: Secretary, The Hertz Corporation, 000 Xxxx Xxxxxxxxx, Xxxx Xxxxx, XX 00000. The written demand for appraisal should specify the stockholder’s name and mailing address, the number of Shares covered by the demand and that the stockholder is thereby demanding appraisal of such Shares. In the case of a long-form merger, Hertz must, within ten days after the Effective Time, provide notice of the Effective Time to all stockholders who have complied with Section 262 of the DGCL and have not voted for approval and adoption of the Merger Agreement. Remaining Stockholders electing to exercise their appraisal rights under Section 262 must not vote for the approval and adoption of the Merger Agreement or consent thereto in writing. Voting or consenting in favor of the approval and adoption of the Merger Agreement, or delivering a proxy in connection with the stockholders meeting called to approve the Merger Agreement (unless the proxy votes against, or expressly abstains from the vote on, the approval and adoption of the Merger Agreement), will constitute a waiver of the stockholder’s right of appraisal and will nullify any written demand for appraisal submitted by the stockholder. Regardless of whether the Merger is effected as a long-form merger or a Short-Form Merger, within 120 days after the Effective Time, either Hertz or any stockholder who has complied with the required conditions of Section 262 and who is otherwise entitled to appraisal rights may file a petition in the Delaware Court of Chancery demanding a determination of the fair value of the Shares of the dissenting stockholders. This petition must also be served on the Surviving Corporation. If a petition for an appraisal is timely filed, after a hearing on such petition, the Delaware Court of Chancery will determine which stockholders are entitled to appraisal rights and thereafter will appraise the Shares owned by such stockholders, determining the fair value of such Shares, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with a fair rate of interest to be paid, if any, upon the amount determined to be the fair value. In determining fair value, the Delaware Court of Chancery is to take into account all relevant factors. In Xxxxxxxxxx v. UOP, Inc., et al., the Delaware Supreme Court discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered and that “[f]air price obviously requires consideration of all relevant factors involving the value of a company.” The Delaware Supreme Court stated that in making this determination of fair value the court must consider “market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts which were known or which could be ascertained as of the date of merger which throw any light on future prospects of the merged corporation ...” The Delaware Supreme Court has construed Section 262 of the DGCL to mean that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered.” However, the court noted that Section 262 provides that fair value is to be determined “exclusive of any element of value arising from the accomplishment or expectation of the merger.” Remaining Stockholders who in the future consider seeking appraisal should have in mind that the fair value of their Shares determined under Section 262 could be more than, the same as, or less than the Merger Consideration if they do seek appraisal of their Shares, and that opinions of investment banking firms as to fairness from a financial point of view are not necessarily opinions as to fair value under Section 262 of the DGCL. The cost of the appraisal proceeding may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable in the circumstances. Upon application of a dissenting stockholder, the Delaware Court of Chancery may order that all or a portion of the expenses incurred by any dissenting stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts, be charged pro rata against the value of all Shares entitled to appraisal. In the absence of such a determination or assessment, each party bears its own expenses. Any Remaining Stockholder who has duly demanded appraisal in compliance with Section 262 of the DGCL will not, after the Effective Time, be entitled to vote for any purpose the Shares subject to such demand or to receive payment of dividends or other transfer by distributions on such Shares, except for dividends or other distributions payable to stockholders of record at a date prior to the Effective Time. At any Credit Party time within 60 days after the Effective Time, any former holder of Shares shall have the right to withdraw his or her demand for appraisal and to accept the Merger Consideration. After this period, such holder may withdraw his or her demand for appraisal only with the consent of Hertz as the Surviving Corporation. If no petition for appraisal is filed with the Delaware Court of Chancery within 120 days after the Effective Time, stockholders’ rights to appraisal shall cease and all stockholders shall be entitled to receive the Merger Consideration. Inasmuch as Hertz has no obligation to file such a petition, and Ford has no present intention to cause or permit the Surviving Corporation to do so, any other party stockholder who desires such a petition to be filed is advised to file it on a timely basis. No petition timely filed in the Delaware Court of Chancery demanding appraisal shall be dismissed as to any Loan Documents (other than Agentstockholder without the approval of the Delaware Court of Chancery, Documentation Agent, L/C Issuer or and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just. Failure to take any Lender) required step in connection with the exercise of any of their appraisal rights and obligations under any Loan Document; and provided, further, that no amendment, modification, may result in the termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lenderrights. APPRAISAL RIGHTS CANNOT BE EXERCISED AT THIS TIME. THE INFORMATION SET FORTH ABOVE IS FOR INFORMATIONAL PURPOSES ONLY WITH RESPECT TO ALTERNATIVES AVAILABLE TO STOCKHOLDERS IF THE MERGER IS CONSUMMATED. STOCKHOLDERS WHO WILL BE ENTITLED TO APPRAISAL RIGHTS IN CONNECTION WITH THE MERGER WILL RECEIVE ADDITIONAL INFORMATION CONCERNING APPRAISAL RIGHTS AND THE PROCEDURES TO BE FOLLOWED IN CONNECTION THEREWITH BEFORE SUCH STOCKHOLDERS HAVE TO TAKE ANY ACTION RELATING THERETO. STOCKHOLDERS WHO SELL SHARES IN THE OFFER WILL NOT BE ENTITLED TO EXERCISE APPRAISAL RIGHTS WITH RESPECT THERETO BUT, RATHER, WILL RECEIVE THE PRICE PAID IN THE OFFER THEREFOR.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 2 contracts
Samples: Offer to Purchase (Ford Motor Co), Offer to Purchase (Ford Motor Co)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination 13.3.1 No amendment or waiver of any provision of this Agreement or any other Loan DocumentDocument (including without limitation any Note), or nor consent to any departure by the Credit Loan Parties or any of them therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Majority Lenders (and the Loan Parties, and then such waiver or Agent at consent shall be effective only in the direction of specific instance and for the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersspecific purpose for which given; provided, provided that this Section shall not apply to amendments to this Agreement that have been made pursuant to Section 4.9; provided further that no amendment, modification, termination waiver or waiver shall, unless in writing and signed by Borrower Funds Administrator consent shall be effective to:
(on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (ia) increase the any Lender’s Revolving Credit Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders)or Term Loan Commitment; (iib) reduce the principal of, rate (or cash rate) of interest on on, or fees payable with due in respect to any Loan amount payable hereunder to any Lender; or other Obligation; (iiic) extend the scheduled due datepostpone any date fixed for any payment of principal of, or reduce interest on, any amounts payable hereunder to any Lender, in each case, without the amount due on any scheduled due date, written consent of any installment each Lender directly affected thereby;
(a) amend the number of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which that shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (vb) except as otherwise expressly permitted herein or in the any other Loan Document, release or discharge any Person liable for the performance of any obligations of any Loan Party hereunder or under any of the Loan Documents; (c) amend the definition of the term Majority Lenders; (d) amend this Section 13.3; (e) amend subsection 4.4.2; or (f) except as otherwise expressly permitted herein or in any other Loan Document, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed except to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise extent expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or by this Section 10.4 Agreement or the definitions Intercreditor Agreement, in each case, without the written consent of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 each Lender;
(which action shall be deemed to directly affect all Lenders); (viiiii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party definitions or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) provision in a manner that would alter the nature of the secured position of any Derivative Obligation Provider or its entitlement to a pro rata allocation among Lenders of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, assets upon termination or waiver affecting acceleration of Obligations, without the written consent of each Lender and Derivative Obligation Provider directly affected thereby; or
(iv) affect the rights or duties of any Agent or Issuing Bank (Aas applicable) under this Agreement or any other Loan Document, without the written consent of such Agent under any Loan Document shall be effective unless in writing and signed by Agent, or Issuing Bank (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by as applicable).
13.3.2 Notwithstanding the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with foregoing provisions of this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, 13.3:
(i) no Deteriorating Lender or Delinquent Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that to the Commitment of such Lender may not be increased or extended without extent the consent of such Lender.Lender would be required under clause (i) of subsection 13.3.1;
(bii) Notwithstanding anything technical and conforming modifications to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or Documents may be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall made with the consent of any such provider or holder be required (other than in their capacities as Lenders, the Loan Parties and Administrative Agent to the extent applicablenecessary to integrate any Requested Increase Amount in accordance with Section 2.4; and
(iii) for Administrative Agent and the Loan Parties may amend any matter hereunder Loan Document to correct an obvious, immaterial or under any of the other Loan Documentsadministrative error or omission, including as or to effect administrative changes that are not adverse to any matter relating Lender, and such amendment shall become effective without any further consent of any other party to such Loan Document if the Collateral same is not objected to in writing by Majority Lenders within five (5) Business Days following receipt of notice thereof.
13.3.3 If a fee is to be paid by the Loan Parties in connection with any waiver or amendment hereunder, the release agreement evidencing such amendment or waiver may, at the discretion of Collateral or Administrative Agent (but shall not be required to), provide that only Lenders executing such agreement by a specified date may share in such fee (and in such case, such fee shall be divided among the applicable Lenders on a pro rata basis without including the interests of any Credit PartyLenders who have not timely executed such agreement).
Appears in 2 contracts
Samples: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, restatement, modification, termination termination, cancellation, discharge or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by any Credit Party from the Credit Parties performance or observance of any provision of this Agreement or any of them therefromother Loan Document, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders Lenders, Agent and Borrower (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowerssuch Credit Party); provided, that no consent or agreement by any Credit Party shall be required to amend, restate, modify, terminate or waive any provision of Article XII (other than Section 12.1(g)) so long as no additional duties are required to be assumed by Borrower; and provided, further, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other ObligationLoan; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under with respect to any Loan DocumentLoan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion any of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation continuance of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly in connection with any sale or transfer of assets permitted hereunderhereby); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); and (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party (other than Agent or any Lender) to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and and, provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall in any event be effective effective, unless in writing and signed by Agent, in addition to Lenders required herein above to take such action. Notwithstanding anything contained in this Agreement to the contrary, no waiver or consent with respect to any Default (Bif in connection therewith Revolving Lenders have exercised their right to suspend the making or incurrence of further Advances) Documentation Agent under or any Loan Document Event of Default shall be effective for purposes of the conditions precedent to the making of Advances unless the same shall be in writing and signed by Documentation Agentthe Requisite Lenders with respect to the Revolving Lenders and Borrower.
(b) Each amendment, and (C) L/C Issuer under any Loan Document restatement, modification, termination or waiver shall be effective unless only in writing the specific instance and signed by L/C Issuerfor the specific purpose for which it was given. No amendment, in each caserestatement, in addition to Lenders modification, termination or waiver shall be required hereinabove for Agent, for the benefit of itself and the benefit of Lenders, to take such action; and provided, further, that no amendment additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Loan Document.
(c) Any amendment, restatement, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Trover Solutions Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders (other than as provided in Section 2.6D); provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders” or “Requisite Class Lender” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Commitments are included on the Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (f) postpones the date on which any interest or any fees are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Commitment Fee or Applicable Margin for purpose of this clause (g); (h) increases the maximum duration of Interest Periods permitted hereunder; (i) releases of all or substantially all the value of the Guaranty; (j) amends the definition of “Pro Rata Shares”; or (k) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5 shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective unless the same shall be in writing and signed only if evidenced by Requisite Lenders (or Agent at the direction a written consent of the Requisite LendersLenders and the Administrative Agent. In addition, (i) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, unless (ii) no increase in writing the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and signed by Borrower Funds Administrator (on behalf agreed that in no event shall waivers or modifications of all Borrowers) conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers and each Lender directly affected thereby, do any of the following: (i) Commitments be deemed to constitute an increase of the Commitment of any individual Lender (which action and that an increase in the available portion of any Commitment of any Lender shall not be deemed to directly affect all Lenders); (ii) reduce constitute an increase in the principal ofCommitment of such Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 3, this Section 10.5 or any other provision of this Agreement relating to the rights or duties obligations of (A) Agent under any Loan Document an Issuing Bank shall be effective unless in writing without the written 121 CREDIT AGREEMENT concurrence of such Issuing Bank and signed (iv) no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this Agreement which, by Agentits terms, (B) Documentation expressly requires the approval or concurrence of the Administrative Agent under any Loan Document shall be effective unless without the written concurrence of the Administrative Agent. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender and no amendment, modification, termination or waiver which has the effect of changing any payment, voluntary or mandatory prepayments or Commitment reductions applicable to any Class (the “Affected Class”) in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document a manner that disproportionately disadvantages such Class relative to the other Class shall be effective unless without the written concurrence of the Requisite Class Lenders of the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in writing Section 2.4 with respect to one Class but not the other Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). Any waiver or consent shall be effective only in the specific instance and signed by L/C Issuer, for the specific purpose for which it was given. No notice to or demand on the Borrower in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment any case shall entitle the Borrower to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and, if signed by the Borrower, on the Borrower and the Credit PartiesHoldings. Notwithstanding anything in this Section 10.5A to the contrary hereincontrary, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of and the other Loan DocumentsDocuments may be amended (or amended and restated) (i) with the written approval of the Administrative Agent, including Holdings and the lenders of the additional Commitments incurred pursuant to Section 2.1A(ii) to implement the additional Commitments incurred pursuant to and in accordance with Section 2.1A(ii), (ii) with the written approval of the Administrative Agent, Holdings and the Accepting Lenders to implement any Loan Modification Offer that becomes effective pursuant to and in accordance with Section 2.9 or (iii) with the written approval of the Administrative Agent and Holdings to cure any ambiguity, omission, defect or inconsistency so long as to any matter relating the Lenders shall have received at least five (5) Business Days prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Collateral Lenders, a written notice from (x) the Requisite Lenders stating that the Requisite Lenders object to such amendment or the release of Collateral or (y) if affected by such amendment, any Credit PartyIssuing Bank stating that it objects to such amendment.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided hereinSubject to the terms and provisions of Section 2.01(c), no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Document, or Document and no consent with respect to any departure by the Credit Parties Borrower or any of them other Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Requisite the Borrower, each Credit Party affected thereby, the Majority Revolver Lenders (or Agent at and the direction of Majority Lenders and acknowledged by the Requisite Lenders) Administrative Agent, and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no then such amendment, modificationwaiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, termination notwithstanding the foregoing,
(i) no such waiver, amendment, or waiver consent shall, unless in writing and signed by the Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby;
(A) extend the date for or change the amount of any principal installment due on the Loans under Section 2.07(a), do or postpone or delay any date for any payment of interest or fees due to such Lenders (or any of the following: them) under any other Loan Document or any Fee Letter;
(iB) increase (except as provided in Section 2.01(c)) or extend the Commitment of such Lender, or reinstate any individual Lender Commitment terminated pursuant to Section 8.02(a), except as provided in Section 10.06;
(which action shall be deemed to directly affect all LendersC) increase (except as provided in Sections 2.01(c); ) or extend any Lender’s Term B Loan Amount;
(iiD) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan or fees payable L/C Borrowing (other than with respect to post-default rates), or of any Loan fees or other Obligation; scheduled amounts payable hereunder (iiiexcluding any mandatory prepayments pursuant to Section 2.06) extend the scheduled due date, or under any other Loan Document or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Applicable Margin provided for herein;
(ivE) change reduce the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be required for Lenders, Agent the Lenders or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all LendersF) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or amend this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) 10.01, change the percentage set forth in definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Majority Lenders” or “Pro Rata ShareMajority Revolver Lenders” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to amend any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) provision of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without Agreement expressly requiring the consent of such Lender.
(b) Notwithstanding anything all the Lenders in order to the contrary in this Agreement take or refrain from taking any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.action;
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of --------------------- this Agreement or any other Loan Document, or and no consent with respect to any departure by the Credit Parties any Borrower or any of them applicable Subsidiary therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders the Majority Banks (or by the Administrative Agent at the direction written request of the Requisite LendersMajority Banks) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersthe Borrowers and acknowledged by the Administrative Agent, and then any such waiver and consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such waiver, -------- ------- amendment, modification, termination or waiver consent shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all the Banks and the Borrowers and each Lender directly affected therebyacknowledged by the Administrative Agent, do any of the following: :
(ia) increase or extend the Commitment of any individual Lender Bank (which action shall be deemed or reinstate any Commitment terminated pursuant to directly affect all Lenderssubsection 9.02(a); );
(iib) postpone or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to the Banks (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan, or (subject to clause (ii) below) any fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, amounts payable hereunder or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any other Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; ;
(ivd) change the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be is required for Lenders, Agent the Banks or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all Lenderse) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or substantially all of any Person executing a substantial portion of the Collateral Guaranty pursuant to this Agreement; or
(which f) amend this Section or any provision herein providing for consent or other action shall be deemed to directly affect by all Lenders) (providedBanks; and, provided further, that (i) no amendment, waiver or consent shall, unless in -------- ------- writing and signed by the Issuing Bank in addition to such release shall not be required if such release is made after the occurrence and during Majority Banks or all the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or LienBanks, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting affect the rights or duties of the Issuing Bank under this Agreement or any L/C-Related Document relating to any Letter of Credit Issued or to be Issued by it, (Aii) Agent under any Loan Document shall be effective no amendment, waiver or consent shall, unless in writing and signed by Agentthe Administrative Agent in addition to the Majority Banks or all the Banks, (B) Documentation as the case may be, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document shall be effective unless in writing and signed by Documentation AgentDocument, and (Ciii) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any the Fee Letter Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Jacobs Engineering Group Inc /De/)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or No waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or Borrower therefrom shall in any of them therefrom, shall event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of an Advance shall not be construed as a waiver of any Default or Event of Default, regardless of whether Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified (except pursuant to an agreement or agreements in writing entered into by Borrower and signed the Agent), except for an amendment to increase the Maximum Loan Amount in accordance with Section 2.14 hereof, such amendment to require the consent of Agent and such Lenders so increasing their Revolving Loan Commitment, or by Requisite Lenders (or Borrower and Agent at with the direction consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers, without taking into account the Loans held by Non-Funding Lenders; provided, provided that no amendment, modification, termination or waiver such agreement shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: :
(i) increase the Revolving Loan Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); without the written consent of such Lender;
(ii) reduce the principal of, rate (or cash rate) amount of interest on or fees payable with respect to any Loan or reduce the rate of interest thereon (other Obligation; than a waiver of post-default interest), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby;
(iii) extend postpone the scheduled due datedate of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount due on of, waive or excuse any scheduled due datesuch payment, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; scheduled date of expiration of any Revolving Loan Commitment, without the written consent of each Lender directly affected thereby,
(iv) change the percentage any of the Commitments, provisions of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed any other provision hereof specifying the number or percentage of Lenders required to directly affect all Lenders); (ix) subordinate the Obligations waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the Liens granted hereunder or under the other Loan Documents, to written consent of each Lender;
(v) release any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and Guarantor from its obligations under any Loan Documenta Guaranty without the written consent of each Lender; and providedor
(vi) except as otherwise specifically provided in this Agreement, furtherrelease all or substantially all of the Collateral, without the written consent of each Lender; provided further that no amendmentsuch agreement shall amend, modification, termination modify or waiver affecting otherwise affect the rights or duties of Agent hereunder without the prior written consent of Agent.
(Ac) Agent under Notwithstanding the foregoing, this Agreement and any other Loan Document shall may be effective unless amended (or amended and restated) with the written consent of the Requisite Lenders, Agent and Borrower (x) to add one or more credit facilities to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in writing respect thereof to share ratably in the benefits of this Agreement and signed by Agent, (B) Documentation Agent under any the other Loan Document shall be effective unless Documents with the Loan and the accrued interest and fees in writing and signed by Documentation Agent, respect thereof and (Cy) L/C Issuer under to include appropriately the Lenders holding such credit facilities in any Loan Document shall be effective unless in writing determination of the Requisite Lenders and signed by L/C IssuerLenders.
(d) If, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to connection with any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any proposed amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then Agent or Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to Agent shall agree, as of such date, to purchase for cash the principal balance of the Loans due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (a) of Section 12.2, and (ii) Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by Borrower hereunder to and including the date of termination, including without limitation any indemnity payments due to such Non-Consenting Lender hereunder for which the amount is known.
(be) Notwithstanding anything to the contrary in herein Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan DocumentsDocuments to cure any ambiguity, including as to any matter relating to the Collateral omission, mistake, defect or the release of Collateral or any Credit Partyinconsistency.
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Term Notes, or consent to any departure by the Credit Parties Company or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which:
(a) reduces or forgives the principal amount of any of the Term Loans;
(b) reduces or increases the percentage specified in the definition of the "Requisite Lenders" (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit permitted pursuant to this Agreement may be included in the definition of the "Requisite Lenders" on substantially the same basis as the Term Loans are included on the Closing Date);
(c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders;
(d) postpones the scheduled final maturity date of any of the Term Loans;
(e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Term Loans;
(f) postpones the date on which any interest or any fees are payable;
(g) decreases the interest rate borne by any of the Term Loans (other than any waiver of any increase in the interest rate applicable to any of the Term Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
(h) increases the maximum duration of Interest Periods permitted hereunder;
(i) except as expressly required or permitted by any Subsidiary Guaranty, release all or substantially all of the Subsidiary Guarantors from their obligations under the Subsidiary Guaranties; or
(j) changes in any manner the provisions contained in subsection 7.1 or this subsection 9.5; in each case, shall be effective unless the same shall be in only if evidenced by a writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) the Lenders to whom Obligations are owed being directly affected by such amendment, modification, termination, waiver or all Borrowers; providedconsent (the consent of the Requisite Lenders not being required for any such change). In addition, that no amendment, modification, termination or waiver shallof any provision of Section 8 or of any other provision of this Agreement which, unless in writing and signed by Borrower Funds Administrator (its terms, expressly requires the approval or concurrence of the Administrative Agent shall be effective without the written concurrence of the Administrative Agent. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of all Borrowers) that Lender. Any waiver or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action consent shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or effective only in the other Loan Documents, release specific instance and for the specific purpose for which it was given. No notice to or demand on the Company in any Guaranty or release all or a substantial portion of case shall entitle the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, Company to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment further notice or demand in similar or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties theretocircumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 9.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and and, if signed by the Credit Parties. Notwithstanding anything to Company, on the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderCompany.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Amendment and Waivers. No provision of this Agreement may be amended or waived other than by an instrument in writing signed by the Company and Buyers holding at least a majority of the Conversion Shares, determined as if all of the Notes held by Buyers then outstanding have been converted into Conversion Shares without regard to any limitations on the conversion of the Notes; provided that for theses purposes any Securities owned directly or indirectly by the Company or any of its affiliates shall be deemed not to be outstanding. Notwithstanding the preceding sentence to the contrary: (ai) Except as otherwise provided herein, no amendment, modification, termination amendment or waiver of the provisions of Section 9(e) or Section 9(f) of this Agreement shall be effective without the approval of the holders of all outstanding Securities, (ii) no amendment or waiver of the provisions of Section 2, Section 7, Section 8, Section 9(k), Section 9(l) or Section 9(m) of this Agreement shall be effective with respect to any holder of Securities unless it is approved by such holder, and (iii) no amendment shall be effective to the extent that it applies to less than all of the holders of the Notes then outstanding. No consideration shall be offered or paid to any holder of any Securities to amend or consent to a waiver or modification of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective the Transaction Documents unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction consideration is offered on identical terms to all of the Requisite Lenders) and Borrower Funds Administrator (on behalf holders of all Borrowers) or all Borrowers; providedsuch Securities. Notwithstanding anything herein to the contrary, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: amendment shall (i) increase extend the Commitment maturity of the Notes, reduce the interest rate, extend the time for payment of interest thereon, or reduce the principal amount thereof or premium, if any, thereon, or reduce any individual Lender (which action shall be deemed amount payable on redemption or repurchase thereof or affect any amounts due to directly affect all Lenders); any holder or (ii) reduce the principal ofaforesaid percentage of Notes, rate (or cash rate) the holders of interest on or fees payable with respect which are required to consent to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lenderthe holders of all Notes then outstanding.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Securities Purchase Agreement (Richardson Electronics LTD/De)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders (other than as provided in Section 2.6C(ii)); provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders” or “Requisite Class Lender” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Commitments are included on the Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (f) postpones the date on which any interest or any fees are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Commitment Fee or Applicable Margin for purpose of this clause (g); (h) increases the maximum duration of Interest Periods permitted hereunder; (i) releases of all or substantially all the value of the Guaranty; (j) amends the definition of “Pro Rata Shares”; or (k) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5 shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective unless the same shall be in writing and signed only if evidenced by Requisite Lenders (or Agent at the direction a written consent of the Requisite LendersLenders and the Administrative Agent. In addition, (i) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, unless (ii) no increase in writing the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and signed by Borrower Funds Administrator (on behalf agreed that in no event shall waivers or modifications of all Borrowers) conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers and each Lender directly affected thereby, do any of the following: (i) Commitments be deemed to constitute an increase of the Commitment of any individual Lender (which action and that an increase in the available portion of any Commitment of any Lender shall not be deemed to directly affect all Lenders); (ii) reduce constitute an increase in the principal ofCommitment of such Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 3, this Section 10.5 or any other provision of this Agreement relating to the rights or duties obligations of (A) Agent under any Loan Document an Issuing Bank shall be effective unless in writing without the written concurrence of such Issuing Bank and signed (iv) no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this Agreement which, by Agentits terms, (B) Documentation expressly requires the approval or concurrence of the Administrative Agent under any Loan Document shall be effective unless without the written concurrence of the Administrative Agent. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender and no amendment, modification, termination or waiver which has the effect of changing any payment, voluntary or mandatory prepayments or Commitment reductions applicable to any Class (the “Affected Class”) in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document a manner that disproportionately disadvantages such Class relative to the other Class shall be effective unless without the written concurrence of the Requisite Class Lenders of 115 CREDIT AGREEMENT the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in writing Section 2.4 with respect to one Class but not the other Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). Any waiver or consent shall be effective only in the specific instance and signed by L/C Issuer, for the specific purpose for which it was given. No notice to or demand on the Borrower in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment any case shall entitle the Borrower to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and, if signed by the Borrower, on the Borrower and the Credit PartiesHoldings. Notwithstanding anything in this Section 10.5A to the contrary hereincontrary, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of and the other Loan DocumentsDocuments may be amended (or amended and restated) (i) with the written approval of the Administrative Agent, including Holdings and the lenders of the additional Commitments incurred pursuant to Section 2.1A(ii) to implement the additional Commitments incurred pursuant to and in accordance with Section 2.1A(ii), (ii) with the written approval of the Administrative Agent, Holdings and the Accepting Lenders to implement any Loan Modification Offer that becomes effective pursuant to and in accordance with Section 2.9 or (iii) with the written approval of the Administrative Agent and Holdings to cure any ambiguity, omission, defect or inconsistency so long as to any matter relating the Lenders shall have received at least five (5) Business Days prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Collateral Lenders, a written notice from (x) the Requisite Lenders stating that the Requisite Lenders object to such amendment or the release of Collateral or (y) if affected by such amendment, any Credit PartyIssuing Bank stating that it objects to such amendment.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties Borrower or any of them Indemnitor therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower and the Requisite Lenders (or by Agent at on their behalf) without taking into account the direction of Loans held by Non-Funding Lenders, and then such amendment, waiver or consent shall be effective only in the Requisite Lenders) specific instance and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersfor the specific purpose for which given; provided, however, that no amendment, modification, termination waiver or waiver consent shall, unless in writing and signed by Borrower Funds Administrator (on behalf without the consent of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the followingLenders: (i) increase change the Commitment number of Lenders required for the Lenders or any individual Lender (which of them to take any action shall be deemed to directly affect all Lenders)hereunder; (ii) reduce amend any of the principal ofprovisions of Sections 9.2, rate 10.4 or 13.3; (iii) amend the sharing of payments by Lenders according to their Pro Rata Shares pursuant to Section 13.3 or cash ratethe definitions of “Pro Rata Share” or “Requisite Lenders”; (iv) release all or substantially all of interest on the value of guaranties delivered by the Indemnitor or fees payable with respect all or substantially all of the Collateral; (v) release Borrower from all of the Obligations other than upon payment in full of the Obligations; (vi) consent to the assignment or other transfer by Borrower or any other party (other than Agent or any Lender) to any Loan Documents of any of their rights and obligations under any Loan Document; or other Obligation; (iiivii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or fees payable under with respect to any Loan Documentportion of the Loan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, waiver or consent shall, without the consent of each Lender directly affected thereby: (i) reduce the amount of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or the interest rate (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) applicable to, the Loans or any fees or other amounts payable hereunder; (ii) postpone any date on which any payment of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), the Loans or any fees or other amounts payable hereunder is required to be made; (iii) increase or extend the Revolving Loan Commitment of any Lender; or (iv) reduce the principal of, rate of interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) or fees payable with respect to any portion of the Loan.
(b) Each amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless only in writing the specific instance and signed by Agentfor the specific purpose for which it was given. No amendment, (B) Documentation modification, termination or waiver shall be required for Agent under to take additional Collateral pursuant to any Loan Document shall be effective unless in writing and signed by Documentation Agent, and Document.
(Cc) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender Lenders and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrower.
(bd) Notwithstanding anything to the contrary in this Agreement No consent or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services agreement by Borrower shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities to amend, modify, change, restate, waive, supplement, discharge, cancel or terminate any provision of Article XII, so long as Lenders, no additional duties are required to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Partybe assumed by Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Enova International, Inc.)
Amendment and Waivers. (a) Except as otherwise provided hereinSubject to the terms and provisions of Sections 2.01(c) and 2.16, no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Document, or Document and no consent with respect to any departure by the Credit Parties Borrower or any of them other Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of Borrower, each Credit Party affected thereby, the Requisite Lenders) Majority Revolver Banks and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; providedthe Majority Banks and acknowledged by the Administrative Agent, that no and then such amendment, modificationwaiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, termination notwithstanding the foregoing,
(i) no such waiver, amendment, or waiver consent shall, unless in writing and signed by Borrower Funds Administrator the Borrower, the Administrative Agent and each Bank affected thereby;
(A) extend the date for or change the amount of any principal installment due on behalf the Loans under Section 2.08(a), or postpone or delay any date for any payment of all Borrowersinterest or fees due to the Banks (or any of them) under any other Loan Document;
(B) increase (except as provided in Sections 2.01(c) and 2.16) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase extend the Commitment of such Bank, or reinstate any individual Lender Commitment terminated pursuant to Section 9.02(a), except as provided in Section 11.07;
(which action shall be deemed to directly affect all Lenders); C) increase (iiexcept as provided in Sections 2.01(c) and 2.16) or extend the Aggregate Commitment;
(D) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan or fees payable Letter of Credit Borrowing (other than with respect to post-default rates), or of any Loan fees or other Obligation; scheduled amounts payable hereunder (iiiexcluding any mandatory prepayments pursuant to Section 2.07) extend the scheduled due date, or under any other Loan Document or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Applicable Margin provided for herein;
(ivE) change reduce the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be required for Lenders, Agent the Banks or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all LendersF) or alteramend this Section 11.01, as between or among change the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or percentage set forth in the other Loan Documents, release any Guaranty or release all or a substantial portion definition of the Collateral (which action shall be deemed to directly affect all Lenders) (providedterm “Majority Banks”, that consent to such release shall not be required if such release is made after change the occurrence and during the continuation of an Event of Default percentage set forth in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing BaseSupermajority Banks” or amend any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess provision of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only this Agreement expressly requiring the consent of Agent and Documentation Agent); (viii) change all the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless Banks in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove order to take such or refrain from taking any action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.;
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination 13.3.1 No amendment or waiver of any provision of this Agreement or any other Loan DocumentDocument (including without limitation any Note), or nor consent to any departure by the Credit Loan Parties or any of them therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Majority Lenders (and the Loan Parties, and then such waiver or Agent at consent shall be effective only in the direction of specific instance and for the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersspecific purpose for which given; provided, provided that no amendment, modification, termination waiver or waiver shall, unless in writing and signed by Borrower Funds Administrator consent shall be effective to:
(on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (ia) increase the Commitment of any individual Lender Lender’s Revolving Credit Commitment, (which action shall be deemed to directly affect all Lenders); (iib) reduce the principal of, rate (or cash rate) of interest on on, or fees payable with due in respect to any Loan amount payable hereunder to any Lender; or other Obligation; (iiic) extend the scheduled due datepostpone any date fixed for any payment of principal of, or reduce interest on, any amounts payable hereunder to any Lender, in each case, without the amount due on any scheduled due date, written consent of any installment each Lender directly affected thereby;
(a) amend the number of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which that shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (vb) except as otherwise expressly permitted herein or in the any other Loan DocumentsDocument, release or discharge any Guaranty Person liable for the performance of any obligations of any Loan Party hereunder or release all or a substantial portion under any of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder)Loan Documents; (vic) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change amend the definition of the term “Borrowing Base” Majority Lenders; (d) amend this Section 13.3; (e) amend subsection 4.4.2; or (f) except as otherwise expressly permitted herein or in any component definition thereof (includingother Loan Document, release any substantial portion of the Collateral, in each case, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the written consent of Agent and Documentation Agent); each Lender;
(viiiiii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party definitions or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) provision in a manner that would alter the nature of the secured position of any Derivative Obligation Provider or its entitlement to a pro rata allocation among Lenders of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, assets upon termination or waiver affecting acceleration of Obligations, without the written consent of each Lender and Derivative Obligation Provider directly affected thereby; or
(iv) affect the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, Issuing Bank or Swingline Lender (Bas applicable) Documentation Agent under this Agreement or any other Loan Document shall be effective unless in writing and signed by Documentation Document, without the written consent of such Agent, and Issuing Bank or Swingline Lender (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by as applicable).
13.3.2 Notwithstanding the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with foregoing provisions of this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, 13.3:
(i) no Deteriorating Lender or Delinquent Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that to the Commitment of such Lender may not be increased or extended without extent the consent of such Lender.Lender would be required under clause (i) of subsection 13.3.1;
(bii) Notwithstanding anything technical and conforming modifications to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or Documents may be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall made with the consent of any such provider or holder be required (other than in their capacities as Lenders, the Loan Parties and Administrative Agent to the extent applicablenecessary to integrate any Incremental Revolving Credit Commitments in accordance with Section 2.4; and
(iii) for Administrative Agent and the Loan Parties may amend any matter hereunder Loan Document to correct an obvious, immaterial or under any of the other Loan Documentsadministrative error or omission, including as or to effect administrative changes that are not adverse to any matter relating Lender, and such amendment shall become effective without any further consent of any other party to such Loan Document if the Collateral or the release same is not objected to in writing by Majority Lenders within five (5) Business Days following receipt of Collateral or any Credit Party.notice thereof; and
Appears in 1 contract
Samples: Loan and Security Agreement (Ani Pharmaceuticals Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties any Co-Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders” or “Requisite Class Lender” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Commitments are included on the Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (f) postpones the date on which any interest or any fees are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Facility Fee for purpose of this clause (g); (h) increases the maximum duration of Interest Periods permitted hereunder; (i) releases all or substantially all of the Collateral; (j) releases of all or substantially all the value of the Guaranty; (k) amends the definition of “Pro Rata Shares”; or (l) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5 shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective unless the same shall be in writing and signed only if evidenced by Requisite Lenders (or Agent at the direction a written consent of the Requisite LendersLenders and the Administrative Agent. In addition, (i) and Borrower Funds Administrator [reserved], (on behalf of all Borrowersii) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, unless (iii) no increase in writing the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and signed by Borrower Funds Administrator (on behalf agreed that in no event shall waivers or modifications of all Borrowers) conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers and each Lender directly affected thereby, do any of the following: (i) Commitments be deemed to constitute an increase of the Commitment of any individual Lender (which action and that an increase in the available portion of any Commitment of any Lender shall not be deemed to directly affect all Lenders); (ii) reduce constitute an increase in the principal ofCommitment of such Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 2.1 A(ii) or any other provision of this Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans shall be effective without the written consent of the Swing Line Lender, (v) no amendment, modification, termination or waiver of any provision of Section 3 or any other provision of this Agreement relating to the rights or duties obligations of (A) Agent under any Loan Document an Issuing Bank shall be effective unless in writing and signed by Agentwithout the written concurrence of such Issuing Bank, (Bvi) Documentation no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of the Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, without the written concurrence of the Administrative Agent and (Cvii) L/C Issuer under any Loan Document no amendment or modification of the First-Out Provisions shall be effective unless in writing without the consent of all Lenders. The Administrative Agent may, but shall have no obligation to, with the concurrence of 145 CREDIT AGREEMENT any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender and signed by L/C Issuerno amendment, in each casemodification, in addition to Lenders required hereinabove to take such action; and providedtermination or waiver which has the effect of changing any payment, further, that no amendment voluntary or mandatory prepayments or Commitment reductions applicable to any Fee Letter may be amended, or rights or privileges thereunder waived, Class (the “Affected Class”) in a writing executed manner that disproportionately disadvantages such Class relative to the other Class shall be effective without the written concurrence of the Requisite Class Lenders of the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only by postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in Section 2.4 with respect to one Class but not the parties theretoother Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Borrowers in any case shall entitle the Borrowers to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and, if signed by the Borrowers, on the Borrowers and the Credit PartiesHoldings. Notwithstanding anything in this Section 10.5A to the contrary hereincontrary, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of and the other Loan DocumentsDocuments may be amended (or amended and restated) (i) with the written approval of the Administrative Agent, including as Holdings and the lenders of the additional Commitments incurred pursuant to Section 2.1 A(iii) to implement the additional Commitments incurred pursuant to and in accordance with Section 2.1 A(iii) or (ii) with the written approval of the Administrative Agent, Holdings and the Accepting Lenders to implement any matter relating Loan Modification Offer that becomes effective pursuant to the Collateral or the release of Collateral or any Credit Partyand in accordance with Section 2.9.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided hereinSubject to the terms and provisions of Section 2.01(c), no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Document, or Document and no consent with respect to any departure by the Credit Parties Borrower or any of them other Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Requisite the Borrower, each Credit Party affected thereby, the Majority Revolver Lenders (or Agent at and the direction of Majority Lenders and acknowledged by the Requisite Lenders) Administrative Agent, and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no then such amendment, modificationwaiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, termination notwithstanding the foregoing,
(i) no such waiver, amendment, or waiver consent shall, unless in writing and signed by the Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby;
(A) extend the date for or change the amount of any principal installment due on the Loans under Section 2.07(a), do or postpone or delay any date for any payment of interest or fees due to such Lenders (or any of the following: them) under any other Loan Document or any Fee Letter;
(iB) increase (except as provided in Section 2.01(c)) or extend the Commitment of such Lender, or reinstate any individual Lender Commitment terminated pursuant to Section 8.02(a), except as provided in Section 11.06;
(which action shall be deemed to directly affect all LendersC) increase (except as provided in Sections 2.01(c); ) or extend any Lender’s Term B Loan Amount;
(iiD) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan or fees payable L/C Borrowing (other than with respect to post-default rates), or of any Loan fees or other Obligation; scheduled amounts payable hereunder (iiiexcluding any mandatory prepayments pursuant to Section 2.06) extend the scheduled due date, or under any other Loan Document or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Applicable Margin provided for herein;
(ivE) change reduce the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be required for Lenders, Agent the Lenders or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all LendersF) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or amend this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) 11.01, change the percentage set forth in definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Majority Lenders” or “Pro Rata ShareMajority Revolver Lenders” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to amend any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) provision of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without Agreement expressly requiring the consent of such Lender.
(b) Notwithstanding anything all the Lenders in order to the contrary in this Agreement take or refrain from taking any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.action;
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans, any interest on the Loans, fees or reimbursement obligations; (b) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (c) postpones the scheduled final maturity date or any scheduled amortization of any of the Loans; (d) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (e) postpones the date on which any interest, fees or reimbursement obligations are payable; (f) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Commitment Fee or Applicable Margin for purpose of this clause (f); (g) increases the maximum duration of Interest Periods permitted hereunder; (h) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5; (i) increases the Commitments of any Lender; or (j) imposes any restrictions on the ability of any Lender to assign all or a portion of its rights and obligations under this Agreement (other than as provided in Section 10.1 as of the Effective Date) shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any such amendment, modification, termination, waiver or consent which (v) reduces the percentage specified in the definition of the “Requisite Lenders” or “Requisite Class Lender” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Commitments are included on the Effective Date); (w) releases all or substantially all of the Collateral (other than pursuant to Section 10.26); (x) permits the Loan Parties to encumber the Collateral or permits the subordination of the Lenders’ Lien on the Collateral other than as expressly provided in the Loan Documents; (y) releases of all or substantially all the value of the Guaranty; or (z) amends the definition of “Pro Rata Shares” shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders; provided still further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective unless the same shall be in writing and signed only if evidenced by Requisite Lenders (or Agent at the direction a written consent of the Requisite LendersLenders and the Administrative Agent. In addition, (i) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, unless (ii) no increase in writing the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and signed by Borrower Funds Administrator (on behalf agreed that in no event shall waivers or modifications of all Borrowers) conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers and each Lender directly affected thereby, do any of the following: (i) Commitments be deemed to constitute an increase of the Commitment of any individual Lender (which action and that an increase in the available portion of any Commitment of any Lender shall not be deemed to directly affect all Lenders); (ii) reduce constitute an increase in the principal ofCommitment of such Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 3, this Section 10.5 or any other provision of this Agreement relating to the rights or duties obligations of (A) Agent under any Loan Document an Issuing Bank shall be effective unless in writing without the written concurrence of such Issuing Bank and signed (iv) no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this Agreement which, by Agentits terms, (B) Documentation expressly requires the approval or concurrence of the Administrative Agent under any Loan Document shall be effective unless without the written concurrence of the Administrative Agent. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender and no amendment, modification, termination or waiver which has the effect of changing any payment, voluntary or mandatory prepayments or Commitment reductions applicable to any Class (the “Affected Class”) in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document a manner that disproportionately disadvantages such Class relative to the other Class shall be effective unless without the written concurrence of the Requisite Class Lenders of the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in writing Section 2.4 with respect to one Class but not the other Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). Any waiver or consent shall be effective only in the specific instance and signed by L/C Issuer, for the specific purpose for which it was given. No notice to or demand on the Borrower in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment any case shall entitle the Borrower to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and, if signed by the Borrower, on the Borrower and the Credit PartiesHoldings. Notwithstanding anything in this Section 10.5A to the contrary hereincontrary, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of and the other Loan DocumentsDocuments may be amended (or amended and restated) (i) with the written approval of the Administrative Agent, including Holdings and the lenders of the additional Commitments incurred pursuant to Section 2.1A(ii) to implement the additional Commitments incurred pursuant to and in accordance with Section 2.1A(ii), (ii) with the written approval of the Administrative Agent, Holdings and the Accepting Lenders to implement any Loan Modification Offer that becomes effective pursuant to and in accordance with Section 2.9 or (iii) with the written approval of the Administrative Agent and Holdings to cure any ambiguity, omission, defect or inconsistency so long as to any matter relating the Lenders shall have received at least five (5) Business Days prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Collateral Lenders, a written notice from (x) the Required Lenders stating that the Required Lenders object to such amendment or the release of Collateral or (y) if affected by such amendment, any Credit PartyIssuing Bank stating that it objects to such amendment.
Appears in 1 contract
Samples: Credit Agreement (Brookfield Residential Properties Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowerseach Credit Party; provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers each Credit Party and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the LoansLoan, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, alter as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial any material portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); and/or (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer Agent or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination termination, or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all BorrowersCredit Parties; provided, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: following and that the agreement of Credit Parties shall not be required for any amendment, modification, termination, or waiver that does any of the following (other than items (iv) and (vi) below to the extent adverse to Credit Parties and unless any of the following would increase any commitment fee owing by Credit Parties): (i) increase the Commitment of any individual Lender or increase the Facility Cap (which action actions shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other ObligationLoan; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under with respect to any Loan DocumentLoan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage (A) of the Commitments, (B) of the aggregate unpaid principal amount of the Loans, Loans or (C) of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunderhereunder including without limitation under Sections 2.12, 2.13 and 9.2; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion any of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation continuance of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunderAgent); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party (other than Agent or any Lender) to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and and, provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall in any event be effective effective, unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided. Notwithstanding anything contained in this Agreement or any other Loan Document to the contrary, further, that no amendment waiver or consent with respect to any Fee Letter may Default (if in connection therewith Revolving Lenders have exercised their right to suspend the making or incurrence of further Advances) or any Event of Default shall be amended, or rights or privileges thereunder waived, effective for purposes of the conditions precedent to the making of Advances unless the same shall be in a writing executed only and signed by the parties theretoRequisite Lenders.
(b) Each amendment, modification, termination or waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No amendment, modification, termination or waiver shall be required for Agent, for the benefit of itself and the benefit of Lenders, to take additional Collateral pursuant to any Loan Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Firearms Training Systems Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Term Notes, or consent to any departure by the Credit Parties Company or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which:
(a) reduces or forgives the principal amount of any of the Term Loans;
(b) reduces or increases the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit permitted pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Term Loans are included on the Restatement Date);
(c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders;
(d) postpones the scheduled final maturity date of any of the Term Loans;
(e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Term Loans;
(f) postpones the date on which any interest or any fees are payable;
(g) decreases the interest rate borne by any of the Term Loans (other than any waiver of any increase in the interest rate applicable to any of the Term Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
(h) except as expressly required or permitted by the Guarantee Agreement, release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee Agreement; or
(i) changes in any manner the provisions contained in subsection 7.1 or this subsection 9.5; in each case, shall be effective unless the same shall be in only if evidenced by a writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) the Lenders to whom Obligations are owed being directly affected by such amendment, modification, termination, waiver or all Borrowers; providedconsent (the consent of the Requisite Lenders not being required for any such change). In addition, that no amendment, modification, termination or waiver shallof any provision of Section 8 or of any other provision of this Agreement which, unless in writing and signed by Borrower Funds Administrator (its terms, expressly requires the approval or concurrence of the Administrative Agent shall be effective without the written concurrence of the Administrative Agent. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of all Borrowers) that Lender. Any waiver or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action consent shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or effective only in the other Loan Documents, release specific instance and for the specific purpose for which it was given. No notice to or demand on the Company in any Guaranty or release all or a substantial portion of case shall entitle the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, Company to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment further notice or demand in similar or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties theretocircumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 9.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and and, if signed by the Credit Parties. Notwithstanding anything to Company, on the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderCompany.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of this Agreement or any other Loan Transaction Document, or consent to any departure by the Credit Parties Issuer or any of them Enova therefrom, shall in any event be effective unless the same shall be in writing and signed by Issuer, the Administrative Agent, the Collateral Agent (at the written direction of Administrative Agent) and the Requisite Lenders Note Purchasers (or by Administrative Agent at on their behalf) without taking into account the direction of Notes held by Non-Funding Note Purchasers, and then such amendment, waiver or consent shall be effective only in the Requisite Lenders) specific instance and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersfor the specific purpose for which given; provided, however, that no amendment, modification, termination waiver or waiver consent shall, unless in writing and signed by Borrower Funds Administrator (on behalf without the consent of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the followingNote Purchasers: (i) increase change the Commitment number of Note Purchasers required for the Note Purchasers or any individual Lender (which of them to take any action shall be deemed to directly affect all Lenders)hereunder; (ii) reduce amend any of the principal ofprovisions of Sections 9.2, rate (10.4 or cash rate) of interest on or fees payable with respect to any Loan or other Obligation13.3; (iii) amend the sharing of payments by Note Purchasers according to their Pro Rata Shares pursuant to Section 13.3 or the definitions of “Pro Rata Share” or “Requisite Note Purchasers”; (iv) release all or substantially all of the Collateral; (v) release Issuer from all of the Obligations other than upon payment in full of the Obligations; (vi) consent to the assignment or other transfer by Issuer or any other party (other than Administrative Agent or any Note Purchaser) to any Transaction Documents of any of their rights and obligations under any Transaction Document; or (vii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or fees payable under with respect to any Loan Documentportion of the Notes, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, waiver or consent shall, without the consent of each Note Purchaser directly affected thereby: (i) reduce the amount of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or the interest rate (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) applicable to, the Notes or any fees or other amounts payable hereunder; (ii) postpone any date on which any payment of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), the Notes or any fees or other amounts payable hereunder is required to be made; (iii) increase or extend the Revolving Commitment of any Note Purchaser; or (iv) reduce the principal of, rate of interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) or fees payable with respect to any portion of the Notes.
(b) Each amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless only in writing the specific instance and signed by Agentfor the specific purpose for which it was given. No amendment, (B) Documentation Agent under any Loan Document modification, termination or waiver shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove for Collateral Agent to take such action; and provided, further, that no amendment additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Transaction Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Administrative Agent, Documentation Collateral Agent, L/C Note Purchasers and Issuer.
(d) No consent or agreement by Issuer shall be required to amend, each Lender and modify, change, restate, waive, supplement, discharge, cancel or terminate any provision of Article XII, so long as no additional duties are required to be assumed by Issuer.
(e) Any amendment of this Agreement which affects the Credit Parties. Notwithstanding anything to rights or duties of the contrary herein, no Deteriorating Lender Collateral Agent or Delinquent Lender the Paying Agent shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without require the consent of such Lender.
(b) Notwithstanding anything to the contrary in Collateral Agent or Paying Agent, as applicable. The Collateral Agent and the Paying Agent may, but shall not be obligated to, enter into any amendment that affects its respective rights, duties or immunities under this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Partyotherwise.
Appears in 1 contract
Samples: Note Issuance and Purchase Agreement (Enova International, Inc.)
Amendment and Waivers. (a) Except With the written consent of the --------------------- Majority Banks, the Administrative Agent and the Borrowers may, from time to time, enter into written amendments, supplements or modifications hereto for the purpose of adding any provisions to this Agreement or changing in any manner the rights of the Banks or of the Borrowers hereunder, and with the consent of the Majority Banks the Administrative Agent on behalf of the Banks may execute and deliver to the Borrowers a written instrument waiving, on such terms and conditions as otherwise provided hereinthe Administrative Agent may specify in such instrument, no amendment, modification, termination or waiver any of any provision the requirements of this Agreement or any Default or Event of Default and its consequences; provided, however, that no such waiver, amendment, supplement or modification shall (a) extend the maturity of any Loan, or reduce the rate or extend the time of payment of interest thereon, or reduce the principal amount thereof, or reduce the rate of any fee payable hereunder or extend the time of payment thereof, in each case, without the written consent of (i) with respect to any such change to any Committed Rate Loan, each Bank and (ii) with respect to any such change to any Bid Loan, the Bank which made such Bid Loan, or (b) change the amount of any Bank's Commitment or the terms of its obligation to make Loans hereunder (other Loan Documentthan in accordance with subsection 2.20) or amend, modify or waive any provision of this subsection 10.1 or reduce the percentage specified in the definition of Majority Banks or Required Banks, or consent to any departure the assignment or transfer by the Credit Parties or either Borrower of any of them therefromits rights and obligations under this Agreement, shall be effective unless in each case without the same shall be in writing and signed by Requisite Lenders (or Agent at the direction written consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due dateBank, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vic) amend, modify or waive any provision of Section 9.2 or this Section 10.4 or 9 without the definitions written consent of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (includingthen Administrative Agent and, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which caseapplicable, any other Agent affected by such change amendment, modification or elimination waiver, or (d) extend the Termination Date with respect to any Bank without the written consent of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan DocumentBank; and provided, further, however, that no such waiver, amendment, modificationsupplement or modification shall waive, termination amend, supplement or otherwise modify subsection 2.16 or Section 8(B)(2) without the written consent of the Required Banks. Any such waiver affecting and any such amendment, supplement or modification shall apply equally to each of the Banks and shall be binding upon the Borrowers, the Banks and the Agents. In the case of any waiver, the Borrowers, the Banks and the Agents shall be restored to their former position and rights hereunder, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Anything contained in the foregoing to the contrary notwithstanding, the relevant Borrower and the relevant Bank with respect to a Negotiated Rate Loan may, from time to time, enter into amendments, supplements or modifications for the purpose of adding any provisions to such Negotiated Rate Loans or changing in any manner the rights or duties of (A) such Bank and such Borrower thereunder and such Bank may waive any of the requirements of such Negotiated Rate Loan; provided, however, that such Borrower and such Bank shall notify the Administrative Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under of any extension of the maturity of such Negotiated Rate Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such actionor reduction of the principal amount thereof; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by such Borrower and such Bank shall not extend the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and maturity of such Negotiated Rate Loan beyond the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that last day of the Commitment of such Lender may not be increased or extended without the consent of such LenderPeriod.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Deere & Co)
Amendment and Waivers. (a) Except as otherwise provided hereinSubject to the terms and provisions of Sections 2.01(c) and 2.15, no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Document, or Document and no consent with respect to any departure by the Credit Parties Borrower or any of them other Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Requisite the Borrower, each Credit Party affected thereby, the Majority Revolver Lenders (or Agent at and the direction of Majority Lenders and acknowledged by the Requisite Lenders) Administrative Agent, and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no then such amendment, modificationwaiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, termination notwithstanding the foregoing,
(i) no such waiver, amendment, or waiver consent shall, unless in writing and signed by the Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby;
(A) extend the date for or change the amount of any principal installment due on the Loans under Section 2.07(a), do or postpone or delay any date for any payment of interest or fees due to such Lenders (or any of the following: them) under any other Loan Document or any Fee Letter;
(iB) increase (except as provided in Sections 2.01(c) and 2.15) or extend the Commitment of such Lender, or reinstate any individual Lender Commitment terminated pursuant to Section 8.02(a), except as provided in Section 10.06;
(which action shall be deemed to directly affect all Lenders); C) increase (iiexcept as provided in Sections 2.01(c) and 2.15) or extend any Lender’s Term B Loan Amount;
(D) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan or fees payable L/C Borrowing (other than with respect to post-default rates), or of any Loan fees or other Obligation; scheduled amounts payable hereunder (iiiexcluding any mandatory prepayments pursuant to Section 2.06) extend the scheduled due date, or under any other Loan Document or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Applicable Margin provided for herein;
(ivE) change reduce the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be required for Lenders, Agent the Lenders or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all LendersF) or alteramend this Section 10.01, as between or among change the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or percentage set forth in the other Loan Documents, release any Guaranty or release all or a substantial portion definition of the Collateral (which action shall be deemed to directly affect all term “Majority Lenders) (provided”, that consent to such release shall not be required if such release is made after change the occurrence and during the continuation of an Event of Default percentage set forth in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing BaseSupermajority Lenders” or amend any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess provision of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only this Agreement expressly requiring the consent of Agent and Documentation Agent); all the Lenders in order to take or refrain from taking any action;
(viiiG) change release the definition guaranty of any Guarantor under its Guaranty Agreement, except in accordance with the express provisions hereof or thereof, or release all or substantially all of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect Collateral except, in all Lenders); (ix) subordinate such cases in accordance with the Obligations hereunder express provisions of this Agreement or the Liens granted hereunder Security Documents;
(H) add any requirements to obtain the consent of any additional Person or under Persons to affect any assignment or participation pursuant to Section 11.06;
(I) extend any Maturity Date; or
(J) amend, consent to, or change any provision of Section 8.04; and
(ii) no amendment, waiver or consent shall, unless in writing and signed by the other Loan DocumentsL/C Issuer in addition to the Majority Lenders, to any other Indebtedness each affected Lender or Lienall the Lenders, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Documents; and
(Aiii) Agent under any Loan Document shall be effective no amendment, waiver or consent shall, unless in writing and signed by Agent, (B) Documentation the Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and providedthe Majority Lenders, furthereach affected Lender or all the Lenders, that no amendment to any Fee Letter as the case may be amendedbe, or affect the rights or privileges thereunder waived, in a writing executed only by duties of the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in Administrative Agent under this Agreement or any other Loan Document; and
(iv) no amendment, no provider waiver or holder consent shall, unless in writing and signed by the Collateral Agent in addition to the Majority Lenders or all the Lenders, as the case may be, affect the rights or duties of the Collateral Agent under the Security Documents or any Bank Products other Loan Document; and
(v) with respect to any Incremental Facility, the Incremental Loan Amendment, and any waiver, consent or Cash Management Services other amendment to any term or provision of this Agreement necessary or advisable to effectuate any Incremental Facility or any provision thereof in accordance with the terms of, or the intent of, this Agreement, shall have be effective when executed by the Borrower, the Administrative Agent and each Incremental Term Lender or Incremental Revolving Lender making an Incremental Revolving Commitment or Incremental Term Commitment; and
(vi) with respect to reallocation of the Revolving Commitment in connection with the Revolver Reallocation Letter, the Revolver Reallocation Letter and any voting waiver, consent or approval rights hereunder other amendment to any term or provision of this Agreement necessary or advisable to effectuate any reallocation of the Revolving Commitment in accordance with the terms or the intent of the Revolver Reallocation Letter, shall be effective when executed by the Borrower, the Administrative Agent and the Majority Revolver Lenders;
(or vii) Interest Rate Protection Agreements, Incremental Loan Amendments (and related Incremental Loan documentation), the Revolver Reallocation Letter (and related documentation) and the Fee Letters shall not be deemed a Lenderto be Loan Documents for purposes of this Section 10.01(a); and
(viii) solely no amendment, waiver or consent shall, unless in writing and signed by virtue each of its status (1) the Borrower, (2) the Administrative Agent, (3) Revolving Lenders having more than 50% of the Aggregate Combined Revolving Commitment (as in effect at such time), or if the provider or holder Aggregate Combined Revolving Commitment has been terminated in full, the aggregate principal amount of outstanding Revolving Loans and L/C Obligations on the date of such agreements amendment, waiver or products consent, and (4) Term B Lenders having more than 50% of the Aggregate Outstanding Term B Loan Balance on the date of such amendment, waiver or consent, amend, waive, consent to, postpone or delay any mandatory prepayment pursuant to Section 2.06.
(b) If, in connection with any proposed change, waiver, discharge or any termination to any of the Obligations owing thereunderprovisions of this Agreement as contemplated by clauses (ii) through (viii), nor shall inclusive, of the second proviso to Section 10.01(a), the consent of any such provider the Majority Lenders is obtained but the consent of one or holder be more other Lenders whose consent is required (other than in their capacities is not obtained, then the Borrower shall have the right, so long as Lendersall non-consenting Lenders whose individual consent is required are treated the same, to require such non-consenting Lender to assign all of its interests, rights, and obligations under this Agreement and the extent applicable) for any matter hereunder or under any related Loan Documents to an assignee that shall assume such obligations pursuant to Section 10.13 so long as at such time of the other Loan Documentssuch replacement, including as to any matter relating each such assignee consents to the Collateral proposed change, waiver, discharge or the release of Collateral or any Credit Partytermination.
Appears in 1 contract
Amendment and Waivers. (a) Except Other than as otherwise provided hereinset forth in Section 10.4(b), no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Transaction Document, or and no consent to any departure by the Credit Parties Borrower or any of them other Loan Party therefrom, shall be effective unless in writing signed by the same Requisite Lenders, the Borrower and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in writing the specific instance and signed by for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(i) extend or increase the Commitment of any Lender without the written consent of such Lender (it being understood that (x) neither the consent of the Requisite Lenders nor the consent of any other Lender shall be required in connection therewith and (y) no amendment, modification or waiver of, or consent to departure from, any condition precedent to funding of a Loan, Default, Event of Default, representation, warranty, covenant, mandatory prepayment or mandatory reduction of the Commitments shall constitute an extension or increase of any Commitment of any Lender);
(ii) postpone any date fixed for any payment of the principal amount or interest due to the Lenders (or any of them) without the written consent of such Lender(s) (it being understood that (x) neither the consent of the Requisite Lenders nor the consent of any other Lender shall be required in connection therewith and (y) a waiver of any Default, Event of Default, representation, warranty, covenant, mandatory prepayment or mandatory reduction of the Commitments (including any amendment of any ratio used in the calculation of such prepayment or reduction amount or in the component definitions thereof and any extensions for administrative convenience as may be agreed by the Administrative Agent (acting at the direction of the Requisite Lenders)) shall not constitute a postponement of any such date); Uniti – Bridge Loan and Borrower Funds Administrator Security Agreement
(on behalf iii) reduce the principal amount of, or the rate of all Borrowers) interest specified herein on, any Term Loan, or all Borrowers; providedany fees or other amounts payable hereunder or under any other Transaction Document, without the written consent of each Lender directly and adversely affected thereby (it being understood that no amendment, modification, termination modification or waiver shallof, unless or consent to departure from, any Default, Event of Default, representation, warranty, covenant, mandatory prepayment or mandatory reduction of the Commitments (including any amendment of any ratio used in writing the calculation of such prepayment or reduction amount or in the component definitions thereof) and signed no change to the definition of any ratio used in the calculation of interest rate or fees therein or in the component definitions, shall in any such case be construed as such a reduction or forgiveness; it being further understood that neither the consent of the Requisite Lenders nor the consent of any other Lender shall be required in connection therewith); provided, however, that only the consent of the Requisite Lenders shall be necessary to amend the definition of “Default Rate” to reduce the Default Rate or to waive any obligation of the Borrower to pay interest at the Default Rate;
(iv) alter the pro rata sharing of payments required by Borrower Funds Administrator (on behalf this Agreement without the written consent of all Borrowers) or all Borrowers and each Lender directly and adversely affected thereby, do any thereby (it being understood that neither the consent of the following: (i) increase Requisite Lenders nor the Commitment consent of any individual other Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for in connection therewith);
(v) change any provision of this Section 10.4(a) or the definition of “Requisite Lenders, Agent ” or any other provision hereof specifying the number or percentage of them Lenders required to take amend, waive or otherwise modify any action rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender directly and adversely affected thereby;
(which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (vvi) except as otherwise expressly permitted herein under this Agreement or in the any other Loan DocumentsTransaction Document, release any Guaranty a material portion the Collateral securing the Obligations, or release all or a substantial portion substantially all of the Collateral (which action shall be deemed to directly affect all Lenders) (providedGuaranty, that in each case without the written consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); each Lender;
(vii) change the definition of “Permitted Change of Control New Owner” without the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the written consent of Agent and Documentation Agent)each Lender; or
(viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, Transaction Documents to any other Indebtedness or LienLien (including without limitation any Indebtedness or Lien issued under this Agreement or any other agreement), as the case may be; and/or , without the written consent of each Lender directly and adversely affected thereby (x) it being understood that neither the consent to of the assignment or other transfer by any Credit Party or Requisite Lenders nor the consent of any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan DocumentLender shall be required in connection therewith); and provided, further, that (x) no amendment, modificationwaiver or consent shall, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to the Lenders required hereinabove above, affect the rights or duties of Administrative Agent under this Agreement or any other Transaction Document and (y) any Uniti – Bridge Loan and Security Agreement amendment or modification to take such action; and provided, further, that no amendment to any the Administrative Agent Fee Letter may be amendedLetter, or waiver of any rights or privileges thereunder waivedthereunder, in a writing executed shall only by require the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender of the Borrower and the Credit PartiesAdministrative Agent. Notwithstanding anything herein to the contrary hereincontrary, no Deteriorating Lender the Loan Parties shall be permitted to rely on any consent or Delinquent Lender waiver executed by Administrative Agent as binding upon Lenders and conclusive evidence that the Requisite Lenders shall have any right to approve or disapprove any amendmentapproved, waiver or consent hereunder, except that if required under the Commitment of such Lender may not be increased or extended without the consent of such Lenderterms hereof.
(b) Notwithstanding anything herein to the contrary and subject to the following sentence, this Agreement may be amended in writing by the Borrower and the Administrative Agent without the consent of any other party for the purpose of providing for Subsidiary Guarantors (including Designated Guarantors) to become party hereto and to hold Collateral to the extent 100% of the equity interest in such subsidiary guarantors is pledged as additional Collateral. In furtherance of the foregoing sentence, the Administrative Agent may post a copy of such amendment for the Lenders and if by 5:00 p.m. New York City time on the fifth (5th) Business Day following such posting the Administrative Agent has not received objections from Lenders constituting Requisite Lenders, then such amendment shall be deemed consented to by the Requisite Lenders and the Administrative Agent shall be entitled to rely upon such consent to execute any such amendment. Notwithstanding anything to the contrary contained in this Section 10.4, this Agreement, the other Transaction Documents and any guarantees, collateral security documents and related documents executed by Loan Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent (acting at the direction of the Requisite Lenders) and may be, together with this Agreement, amended, amended and restated, supplemented and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any Lender (1) in order to comply with local Applicable Law or advice of local counsel, (2) to cure any ambiguity, mistake, defect, inconsistency, obvious error or any error or omission of a technical or administrative nature or to effect any necessary or desirable technical change and/or (3) in order to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Transaction Documents.
(c) Notwithstanding anything herein to the contrary, this Agreement may be amended in writing by the Borrower, the Facility Agent and the Administrative Agent without the consent of any other party for the purpose of making certain mechanical, technical or administrative amendments in order to align payment provisions of this Agreement with the Interest Rate Protection Agreement.
(d) No amendment, waiver or consent shall, unless in writing and signed by Account Bank or Verification Agent, affect the rights or duties of Account Bank or Verification Agent under this Agreement or any other Loan Transaction Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder .
(or be deemed a Lendere) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, Notwithstanding anything herein to the extent applicablecontrary (i) for the Management Agreement may be amended in accordance with Section 6.18 without the need to obtain any matter hereunder or under additional consents not set forth therein and (ii) the Account Bank Control Agreement may be amended as set forth therein without the need to obtain any of the other additional consents. Uniti – Bridge Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.and Security Agreement
Appears in 1 contract
Samples: Bridge Loan and Security Agreement (Uniti Group Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination termination, or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them Borrowers therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (or Lenders, Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligationthe Loan; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under any Loan Documentwith respect to the Loan, or waive, forgive, extend, defer or postpone the payment thereof, (except for any extension of the Maturity Date at the election of the Borrower permitted hereunder); (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the LoansLoan, or of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 10.17 or the definitions of the terms used in Section 9.2 or this Section 10.4 10.17 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 10.17 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (xvi) consent to the assignment or other transfer by any Credit Party Borrowers or any other party (other than Agent or any Lender) to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and and, provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall in any event be effective effective, unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove herein above to take such action; .
(b) Each amendment, modification, termination or waiver shall be effective only in the specific instance and providedfor the specific purpose for which it was given. No amendment, furthermodification, that no amendment termination or waiver shall be required for Agent, for the benefit of itself and the benefit of Lenders, to take additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Loan Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.17 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrowers.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Loan and Security Agreement (Secure America Acquisition CORP)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties Borrower or any of them Indemnitor therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower and the Requisite Lenders (or by Agent at on their behalf) without taking into account the direction of Loans held by Non-Funding Lenders, and then such amendment, waiver or consent shall be effective only in the Requisite Lenders) specific instance and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersfor the specific purpose for which given; provided, however, that no amendment, modification, termination waiver or waiver consent shall, unless in writing and signed by Borrower Funds Administrator (on behalf without the consent of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the followingLenders: (i) increase change the Commitment number of Lenders required for the Lenders or any individual Lender (which of them to take any action shall be deemed to directly affect all Lenders)hereunder; (ii) reduce amend any of the principal of, rate provisions of Sections 9.2 or this Section 10.4; (iii) amend the sharing of payments by Lenders according to their Pro Rata Shares pursuant to Section 13.3 or cash ratethe definitions of “Pro Rata Share” or “Requisite Lenders; (iv) release all or substantially all of interest on the value of guaranties delivered by the Indemnitor or fees payable with respect all or substantially all of the Collateral; (v) release Borrower from all of the Obligations other than upon payment in full of the Obligations; (vi) consent to the assignment or other transfer by Borrower or any other party to any Loan Documents (other than Agent or other Obligationany Lender) of any of their rights and obligations under any Loan Document; or (iiivii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or fees payable under with respect to any Loan Documentportion of the Loan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, waiver or consent shall, without the consent of each Lender directly affected thereby: (i) reduce the amount of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or the interest rate (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) applicable to, the Loans or any fees or other amounts payable hereunder; (ii) postpone any date on which any payment of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), the Loans or any fees or other amounts payable hereunder is required to be made; (iii) increase or extend the Revolving Loan Amount of any Lender; or (iv) reduce the principal of, rate of interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) or fees payable with respect to any portion of the Loan.
(b) Each amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless only in writing the specific instance and signed by Agentfor the specific purpose for which it was given. No amendment, (B) Documentation modification, termination or waiver shall be required for Agent under to take additional Collateral pursuant to any Loan Document shall be effective unless in writing and signed by Documentation Agent, and Document.
(Cc) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation AgentManaging Agents, L/C Issuer, each Lender Lenders and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrower.
(bd) No consent or agreement by Borrower shall be required to amend, modify, change, restate, waive, supplement, discharge, cancel or terminate any provision of Article XIII, so long as no additional duties are required to be assumed by Borrower or as otherwise set forth in such Article.
(e) Notwithstanding anything the foregoing, the Agent and Borrower shall be permitted to amend any provision of the contrary in this Agreement Loan Documents (and any such amendment shall become effective without any further action or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as party to any matter relating to Loan Document) if the Collateral or Agent and the release of Collateral Borrower shall have jointly identified an obvious error or any Credit Partyerror, ambiguity, defect or inconsistency of omission of a technical or immaterial nature in any such provision.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of this Agreement or any other Loan Transaction Document, or consent to any departure by the Credit Parties Issuer or any of them Enova therefrom, shall in any event be effective unless the same shall be in writing and signed by Issuer, the Administrative Agent, the Collateral Trustee (at the written direction of Administrative Agent) and the Requisite Lenders Note Purchasers (or by Administrative Agent at on their behalf) without taking into account the direction of Notes held by Non-Funding Note Purchasers, and then such amendment, waiver or consent shall be effective only in the Requisite Lenders) specific instance and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersfor the specific purpose for which given; provided, however, that no amendment, modification, termination waiver or waiver consent shall, unless in writing and signed by Borrower Funds Administrator (on behalf without the consent of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the followingNote Purchasers: (i) increase change the Commitment number of Note Purchasers required for the Note Purchasers or any individual Lender (which of them to take any action shall be deemed to directly affect all Lenders)hereunder; (ii) reduce amend any of the principal ofprovisions of Sections 9.2, rate (10.4 or cash rate) of interest on or fees payable with respect to any Loan or other Obligation13.3; (iii) amend the sharing of payments by Note Purchasers according to their Pro Rata Shares pursuant to Section 13.3 or the definitions of “Pro Rata Share” or “Requisite Note Purchasers”; (iv) release all or substantially all of the Collateral; (v) release Issuer from all of the Obligations other than upon payment in full of the Obligations; (vi) consent to the assignment or other transfer by Issuer or any other party (other than Administrative Agent or any Note Purchaser) to any Transaction Documents of any of their rights and obligations under any Transaction Document; or (vii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or fees payable under with respect to any Loan Documentportion of the Notes, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, waiver or consent shall, without the consent of each Note Purchaser directly affected thereby: (i) reduce the amount of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or the interest rate (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) applicable to, the Notes or any fees or other amounts payable hereunder; (ii) postpone any date on which any payment of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), the Notes or any fees or other amounts payable hereunder is required to be made; (iii) increase or extend the Revolving Commitment of any Note Purchaser; or (iv) reduce the principal of, rate of interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) or fees payable with respect to any portion of the Notes.
(b) Each amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless only in writing the specific instance and signed by Agentfor the specific purpose for which it was given. No amendment, (B) Documentation Agent under any Loan Document modification, termination or waiver shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove for Collateral Trustee to take such action; and provided, further, that no amendment additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Transaction Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Administrative Agent, Documentation AgentCollateral Trustee, L/C Note Purchasers and Issuer.
(d) No consent or agreement by Issuer shall be required to amend, each Lender and modify, change, restate, waive, supplement, discharge, cancel or terminate any provision of Article XII, so long as no additional duties are required to be assumed by Issuer.
(e) Any amendment of this Agreement which affects the Credit Parties. Notwithstanding anything to rights or duties of the contrary herein, no Deteriorating Lender Collateral Trustee or Delinquent Lender the Paying Agent shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without require the consent of such Lender.
(b) Notwithstanding anything to the contrary in Collateral Trustee or Paying Agent, as applicable. The Collateral Trustee and the Paying Agent may, but shall not be obligated to, enter into any amendment that affects its respective rights, duties or immunities under this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Partyotherwise.
Appears in 1 contract
Samples: Note Issuance and Purchase Agreement (Enova International, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties Company or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which:
(a) reduces or forgives the principal amount of any of the Loans;
(b) reduces the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Term Loans and Revolving Loan Commitments are included on the Closing Date);
(c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders;
(d) postpones the scheduled final maturity date of any of the Loans;
(e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans;
(f) postpones the date on which any interest or any fees are payable;
(g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
(h) increases the maximum duration of Interest Periods permitted hereunder;
(i) releases all or substantially all of the Collateral;
(j) except as required or permitted by any Guaranty, releases all or substantially all of the Guarantors from their obligations under the Guaranties;
(k) reduces the amount or postpones the due date of any amount payable in respect of, or extends the required expiration date of, any Letter of Credit;
(l) changes the obligations of the Lenders relating to the purchase of participations in Letters of Credit in any manner that is adverse to the Issuing Bank; or
(m) changes in any manner the provisions contained in subsection 8.1 or this subsection 10.5; in each case, shall be effective unless the same shall be in only if evidenced by a writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowersthe Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change). In addition, (i) any amendment, modification, termination or waiver of subsection 4.2 or any of the provisions contained in subsection 4.2 at any time after the Closing Date shall be effective only if evidenced by a writing signed by or on behalf of the Administrative Agent and the Requisite Class Lenders of the Class of Lenders who have Revolving Loan Exposure, (ii) no increase in the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and agreed that in no event shall waivers or modifications of conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers; providedof the Commitments be deemed to constitute an increase of the Commitment of any Lender and that an increase in the available portion of any Commitment of any Lender shall not be deemed to constitute an increase in the Commitment of such Lender, that (iii) no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowersany provision of subsection 2.1A(iii) or all Borrowers and each Lender directly affected thereby, do any other provision of this Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans shall be effective without the written concurrence of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal ofSwing Line Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 3 relating to the rights or duties obligations of (A) Agent under any Loan Document an Issuing Bank shall be effective unless in writing and signed by Agentwithout the written concurrence of such Issuing Bank with respect to any Letter of Credit then outstanding, (Bv) Documentation no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of the Administrative Agent under any Loan Document and/or the Collateral Agent shall be effective unless in writing and signed by Documentation Agent, without the written concurrence of such Agent and (Cvi) L/C Issuer under no amendment or modification of any Loan Document priority of Liens in the Collateral that secure the Obligations shall be effective unless in writing and signed by L/C Issuerwithout the consent of all Lenders. Notwithstanding the foregoing, any waiver that extends the initial time frame for any post-closing covenant set forth on Schedule 6.15 shall only require the consent of the Administrative Agent; provided that all such extensions with respect to any such post-closing covenants do not, in each casethe aggregate, in addition to Lenders required hereinabove to take such action; and providedincrease the time frame for a period greater than the initial time frame set forth on Schedule 6.15. No amendment, furthermodification, that no amendment termination or waiver of any provision of subsection 2.4 which has the effect of changing any voluntary or mandatory prepayments or Commitment reductions applicable to any Fee Letter may be amended, or rights or privileges thereunder waived, Class (the “Affected Class”) in a writing executed manner that disproportionately disadvantages such Class relative to the other Class shall be effective without the written concurrence of the Requisite Class Lenders of the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only by postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in subsection 2.4 with respect to one Class but not the parties theretoother Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Company in any case shall entitle the Company to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and and, if signed by the Credit Parties. Notwithstanding anything to Company, on the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderCompany.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Transportation Technologies Industries Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties Company or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which:
(a) reduces or forgives the principal amount of any of the Term Loans;
(b) reduces the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Term Loans are included on the Closing Date);
(c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders;
(d) postpones the scheduled final maturity date of any of the Term Loans;
(e) postpones the date or reduces the amount of any payment (but not prepayment) of principal of any of the Term Loans;
(f) postpones the date on which any interest or any fees are payable;
(g) decreases the interest rate borne by any of the Term Loans (other than any waiver of any increase in the interest rate applicable to any of the Term Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
(h) increases the maximum duration of Interest Periods permitted hereunder;
(i) releases all or substantially all of the Collateral;
(j) except as required or permitted by any Guaranty, releases all or substantially all of the Guarantors from their obligations under the Guaranties; or
(k) changes in any manner the provisions contained in subsection 8.1 or this subsection 10.5; in each case, shall be effective unless the same shall be in only if evidenced by a writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowersthe Lenders to whom Obligations are owed being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change). In addition, (i) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of Section 9 or of any other provision of this Agreement which, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) its terms, expressly requires the approval or all Borrowers and each Lender directly affected thereby, do any concurrence of the following: (i) increase Administrative Agent and/or the Commitment of any individual Lender (which action Collateral Agent shall be deemed to directly affect all Lenders); effective without the written concurrence of such Agent and (ii) reduce no amendment or modification of any priority of Liens in the principal ofCollateral that secure the Obligations in a manner adverse to the Lenders shall be effective without the consent of all Lenders. Notwithstanding the foregoing, rate (or cash rate) any waiver that extends the initial time frame for any post-closing covenants set forth on Schedule 6.15 shall only require the consent of interest on or fees payable the Administrative Agent; provided that all such extensions with respect to any Loan or other Obligation; (iii) extend such post-closing covenants do not, in the scheduled due dateaggregate, or reduce increase the amount due time frame for a period greater than the initial time frame set forth on any scheduled due dateSchedule 6.15. The Administrative Agent may, but shall have no obligation to, with the concurrence of any installment Lender, execute amendments, modifications, waivers or consents on behalf of principal, interest that Lender. Any waiver or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which consent shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or effective only in the other Loan Documents, release specific instance and for the specific purpose for which it was given. No notice to or demand on the Company in any Guaranty or release all or a substantial portion of case shall entitle the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, Company to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment further notice or demand in similar or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties theretocircumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and and, if signed by the Credit Parties. Notwithstanding anything to Company, on the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderCompany.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Transportation Technologies Industries Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowerssuch Credit Party); provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowersor such Credit Party) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial any material portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); and/or (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer Agent or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided. Notwithstanding anything contained in this Agreement to the contrary, further, that no amendment waiver or consent with respect to any Fee Letter may Default (if in connection therewith Revolving Lenders have exercised their right to suspend the making or incurrence of Advances) or any Event of Default shall be amended, or rights or privileges thereunder waived, effective for purposes of the conditions precedent to the making of Advances unless the same shall be in writing and signed by Revolving Lenders holding at least a writing executed only by majority of the parties theretoCommitments in respect of the Revolving Facility. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Global Employment Holdings, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or No waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or Borrower therefrom shall in any of them therefrom, shall event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of an Advance shall not be construed as a waiver of any Default or Event of Default, regardless of whether Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Borrower, the Agent and signed Requisite Lenders, without taking into account the Loan held by Requisite Lenders (Non-Funding Lenders, or by Borrower and Agent at with the direction consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers, without taking into account the Loan held by Non-Funding Lenders; provided, provided that no amendment, modification, termination or waiver such agreement shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: :
(i) increase the Revolving Loan Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); without the written consent of such Lender;
(ii) reduce the principal of, rate (or cash rate) amount of interest on or fees payable with respect to any Loan or reduce the rate of interest thereon (other Obligation; than a waiver of post-default interest), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby;
(iii) extend postpone the scheduled due datedate of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount due on of, waive or excuse any scheduled due datesuch payment, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; scheduled date of expiration of any Revolving Loan Commitment, without the written consent of each Lender directly affected thereby;
(iv) change the percentage any of the Commitments, provisions of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed any other provision hereof specifying the number or percentage of Lenders required to directly affect all Lenders); (ix) subordinate the Obligations waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the Liens granted hereunder or written consent of each Lender;
(v) release Indemnity Guarantor from its obligations under the other Loan DocumentsIndemnity Guaranty without the written consent of each Lender; or
(vi) except as otherwise specifically provided in this Agreement, to any other Indebtedness release all or Liensubstantially all of the Collateral, as without the case may bewritten consent of each Lender; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, provided further that no amendmentsuch agreement shall amend, modification, termination modify or waiver affecting otherwise affect the rights or duties of Agent hereunder without the prior written consent of Agent.
(Ac) Agent under Notwithstanding the foregoing, this Agreement and any other Loan Document shall may be effective unless amended (or amended and restated) with the written consent of the Requisite Lenders, Agent and Borrower (x) to add one or more credit facilities to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in writing respect thereof to share ratably in the benefits of this Agreement and signed by Agent, (B) Documentation Agent under any the other Loan Document shall be effective unless Documents with the Loan and the accrued interest and fees in writing and signed by Documentation Agent, respect thereof and (Cy) L/C Issuer under to include appropriately the Lenders holding such credit facilities in any Loan Document shall be effective unless in writing determination of the Requisite Lenders and signed by L/C IssuerLenders.
(d) If, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to connection with any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any proposed amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Requisite Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then Agent or Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (x) another bank or other entity which is reasonably satisfactory to Borrower and Agent shall agree, as of such date, to purchase for cash the Loan and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (a) of Section 12.2, and (y) Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by Borrower hereunder to and including the date of termination, including without limitation any indemnity payments due to such Non-Consenting Lender hereunder.
(be) Notwithstanding anything to the contrary in herein Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan DocumentsDocuments to cure any ambiguity, including as to any matter relating to the Collateral omission, mistake, defect or the release of Collateral or any Credit Partyinconsistency.
Appears in 1 contract
Samples: Loan and Security Agreement (CURO Group Holdings Corp.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modificationNo Modification, termination or waiver of any provision of this Agreement Agreement, of the Notes or of any other Loan Document, or consent to any departure by the Credit Parties or any of them Loan Party therefrom, shall in any event be effective unless without the same shall be in writing and signed by written concurrence of the Requisite Lenders and each Loan Party that is party to the relevant Loan Document; provided that any such Modification, termination, waiver or consent which: (a) reduces or Agent at forgives the direction principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf , additional extensions of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shall, unless credit pursuant to this Agreement may be included in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” on substantially the same basis as the Loans are included on the Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of the Loans (except in accordance with the terms of subsection 2.12); (e) postpones the date on which any interest is payable; (f) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to subsection 2.4E) or the amount of any fees (including the extension fee payable under subsection 2.12) payable hereunder; (g) increases the maximum duration of Interest Periods permitted hereunder; (h) releases all or substantially all of the Collateral; (i) releases Holdings from its obligations under any Guaranty or, except as provided in any applicable Guaranty or in connection with Asset Sales to the extent permitted under subsection 6.8, releases all or substantially all of the Subsidiary Guarantors from their obligations under the Guaranty; (j) changes subsections 2.6D(iii) or 9.4 or amends the definition of “Pro Rata Share” in a manner that would alter the pro rata sharing of payments required thereby; or (which action k) changes in any manner the provisions contained in this subsection 9.5, shall be deemed effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed being directly affect all Lendersaffected by such Modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that any Modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” shall be effective only if evidenced by a written concurrence of the Requisite Lenders and the Administrative Agent. In addition to the written concurrence of the Requisite Lenders and each Loan Party that is party to the relevant Loan Document, (i) no amendment, modificationModification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document provision of any Note shall be effective unless in writing without the written concurrence of the Lender which is the holder of that Note, and signed (ii) no Modification, termination or waiver of any provision of Section 8 or of any other provision of this Agreement which, by Agentits terms, (B) Documentation expressly requires the approval or concurrence of the Administrative Agent under any Loan Document or the Collateral Agent shall be effective unless in writing and signed by Documentation without the written concurrence of the Administrative Agent or the Collateral Agent, and (C) L/C Issuer under any Loan Document as applicable. Any waiver or consent shall be effective unless only in writing the specific instance and signed by L/C Issuer, for the specific purpose for which it was given. No notice to or demand on any Borrower in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment any case shall entitle the Borrowers to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modificationModification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 9.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and on the Credit PartiesBorrowers. Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Requisite Lenders, the Administrative Agent and the Borrowers (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably (including with respect to prepayments) in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof and in the benefits of all the Collateral, (b) to provide for the Lenders holding such additional credit facilities to share ratably with the Lenders holding Loans, and (c) to include appropriately the Lenders holding such credit facilities in any determination of the Requisite Lenders. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that contained in this Section 9.5: (i) the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything parties to the contrary Agent Letters may (1) enter into written amendments, supplements or modifications to the Agent Letters (including amendments and restatements thereof) , for the purpose of adding any provisions thereto or changing in this Agreement any manner the rights thereunder of the parties thereto or (2) waive, on such terms and conditions as may be specified in the instrument of waiver, any of the requirements of the Agent Letters, as the case may be, or any other Loan Document, no provider Default or holder Event of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, Default to the extent applicable(and only to the extent) for relating to the Agent Letters, it being understood that the waiver of any matter hereunder Default or under Event of Default (or portion thereof) relating to any of the other Loan DocumentsDocuments may be accomplished only as set forth in the immediately preceding paragraph; (ii) the Collateral Agent may pursuant to the terms and conditions set forth in the Sponsor Guaranty or the Environmental Indemnity (as applicable), including but without obtaining the consent of the Requisite Lenders, release either of the guarantors or indemnitors that is a party to such agreement from their obligations thereunder and (at the Collateral Agent’s election) require the Borrowers and Holdings to deliver an amended or replacement Sponsor Guaranty or Environmental Indemnity (as to any matter relating applicable) in form and substance, and executed by a substitute guarantor or indemnitor, acceptable to the Collateral Agent in its reasonable discretion; (iii) the Collateral Agent may in accordance with the applicable terms of this Agreement, but without obtaining the consent of the Requisite Lenders, (1) deliver to the Control Account Bank, updated and revised Operating Expenses Budgets, Carrying Costs Budgets and Predevelopment Expenses Budgets, (2) amend and revise the schedules to any Account Control Agreement, and (3) amend the disbursement instructions with respect to funds on deposit in the Lockbox Account, the Cash Management Account the Interest Reserve Account, the Operating Expense Account, the Carrying Costs Reserve Account, the Predevelopment Expenses Reserve Account and the Marriott Parking Dispute Reserve Account and (iv) to the extent applicable, all voting with respect to any Modification, termination or waiver as set forth in this subsection 9.5A shall be subject to the release terms of Collateral or any Credit Partythe Co-Lender Agreement.
Appears in 1 contract
Samples: Credit Agreement (FX Real Estate & Entertainment Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties any Co-Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders” or “Requisite Class Lender” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Commitments are included on the Restatement Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (f) postpones the date on which any interest or any fees are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Facility Fee or Applicable Margin for purpose of this clause (g); (h) increases the maximum duration of Interest Periods permitted hereunder; (i) [reserved]; (j) releases of all or substantially all the value of the Guaranty; (k) amends the definition of “Pro Rata Shares”; or (l) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5 shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective unless the same shall be in writing and signed only if evidenced by Requisite Lenders (or Agent at the direction a written consent of the Requisite LendersLenders and the Administrative Agent. In addition, (i) and Borrower Funds Administrator [reserved], (on behalf of all Borrowersii) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, unless (iii) no increase in writing the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and signed by Borrower Funds Administrator (on behalf agreed that in no event shall waivers or modifications of all Borrowers) conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers and each Lender directly affected thereby, do any of the following: (i) Commitments be deemed to constitute an increase of the Commitment of any individual Lender (which action and that an increase in the available portion of any Commitment of any Lender shall not be deemed to directly affect all Lenders); (ii) reduce constitute an increase in the principal ofCommitment of such Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments[reserved], of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 3, this Section 10.5 or any other provision of this Agreement relating to the rights or duties obligations of (A) Agent under any Loan Document an Issuing Bank shall be effective unless in writing and signed by Agentwithout the written concurrence of such Issuing Bank, (Bvi) Documentation no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of the Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, without the written concurrence of the Administrative Agent and (Cvii) L/C Issuer under [reserved]. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Loan Document Lender, execute amendments, modifications, waivers or consents on behalf of that Lender and no amendment, modification, termination or waiver which has the effect of changing any payment, voluntary or mandatory prepayments or Commitment reductions applicable to any Class (the “Affected Class”) in a manner that disproportionately disadvantages such Class relative to the other Class shall be effective unless without the written concurrence of the Requisite Class Lenders of the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in writing Section 2.4 with respect to one Class but not the other Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). Any waiver or consent shall be effective only in the specific instance and signed by L/C Issuer, for the specific purpose for which it was given. No notice to or demand on the Borrowers in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment any case shall entitle the Borrowers to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and, if signed by the Borrowers, on the Borrowers and the Credit PartiesHoldings. Notwithstanding anything in this Section 10.5A to the contrary hereincontrary, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of and the other Loan DocumentsDocuments may be amended (or amended and restated) (i) with the written approval of the Administrative Agent, including Holdings and the lenders of the additional Commitments incurred pursuant to Section 2.1A(iii) to implement the additional Commitments incurred pursuant to and in accordance with Section 2.1A(iii), (ii) with the written approval of the Administrative Agent, Holdings and the Accepting Lenders to implement any Loan Modification Offer that becomes effective pursuant to and in accordance with Section 2.9 or (iii) with the written approval of the Administrative Agent and Holdings to cure any ambiguity, omission, defect or inconsistency so long as to any matter relating the Lenders shall have received at least five (5) Business Days prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Collateral Lenders, a written notice from (x) the Required Lenders stating that the Required Lenders object to such amendment or the release of Collateral or (y) if affected by such amendment, any Credit PartyIssuing Bank stating that it objects to such amendment.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided hereinSubject to the terms and provisions of Sections 2.01(c) and 2.16, no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Document, or Document and no consent with respect to any departure by the Credit Parties Borrower or any of them other Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of Borrower, each Credit Party affected thereby, the Requisite Lenders) Majority Revolver Banks and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; providedthe Majority Banks and acknowledged by the Administrative Agent, that no and then such amendment, modificationwaiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, termination notwithstanding the foregoing,
(i) no such waiver, amendment, or waiver consent shall, unless in writing and signed by Borrower Funds Administrator the Borrower, the Administrative Agent and each Bank affected thereby;
(A) extend the date for or change the amount of any principal installment due on behalf the Loans under Section 2.08(a), or postpone or delay any date for any payment of all Borrowersinterest or fees due to the Banks (or any of them) under any other Loan Document;
(B) increase (except as provided in Sections 2.01(c) and 2.16) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase extend the Commitment of such Bank, or reinstate any individual Lender Commitment terminated pursuant to Section 9.02(a), except as provided in Section 12.07;
(which action shall be deemed to directly affect all Lenders); C) increase (iiexcept as provided in Sections 2.01(c) and 2.16) or extend the Aggregate Commitment;
(D) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan or fees payable Letter of Credit Borrowing (other than with respect to post-default rates), or of any Loan fees or other Obligation; scheduled amounts payable hereunder (iiiexcluding any mandatory prepayments pursuant to Section 2.07) extend the scheduled due date, or under any other Loan Document or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Applicable Margin provided for herein;
(ivE) change reduce the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be required for Lenders, Agent the Banks or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all LendersF) or alteramend this Section 12.01, as between or among change the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or percentage set forth in the other Loan Documents, release any Guaranty or release all or a substantial portion definition of the Collateral (which action shall be deemed to directly affect all Lenders) (providedterm “Majority Banks”, that consent to such release shall not be required if such release is made after change the occurrence and during the continuation of an Event of Default percentage set forth in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing BaseSupermajority Banks” or amend any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess provision of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only this Agreement expressly requiring the consent of Agent and Documentation Agent); (viii) change all the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless Banks in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove order to take such or refrain from taking any action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.;
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modificationModification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties Borrower or any of them other Loan Party therefrom, shall in any event be effective unless without the same shall be in writing and signed by Requisite Lenders (or Agent at the direction written concurrence of the Requisite Lenders; provided that any such amendment, Modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces or increases the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Loans which are included on the Closing Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans; (f) postpones the date on which any interest, any fees or any amounts due under Section 2.7B(ii) are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.5E) or the amount of any fees payable hereunder or any amounts payable under Section 2.7B(ii); (h) increases the Loan Commitment of any Lender permitted hereunder (other than with respect to Xxxxxxx X-0, up to a maximum amount of $10,000,000, and Borrower Funds Administrator subject to the provisions of Section 9.1H herein); (i) releases all or substantially all of the Collateral or any of the Guaranties (except to the extent otherwise required or permitted to be released under the terms of the Loan Documents); and (j) changes in any manner the provisions contained in Section 7.1 or this Section 9.5; shall be effective only if evidenced by a writing signed by or on behalf of all Borrowers) the Lenders to whom Obligations are owed being directly affected by such amendment, Modification, termination, waiver or all Borrowersconsent (the consent of the Requisite Lenders not being required for any such change); provided, further that no any amendment, modificationModification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” shall be effective only if evidenced by a written concurrence of the Requisite Lenders and the Agent. In addition, (i) any amendment, Modification, termination or waiver shallof any of the provisions contained in Section 3.2, unless in and changes to the “Schedules of Approved Sales Prices” Agent’s approval rights over “Change Orders”, the “Development Budget”, “Development Draw Schedule”, “Development Schedule” changes to “Minimum Sales Prices”, “Payment and Performance Bond” and changes for periods following the Closing Date shall be effective only if evidenced by a writing and signed by Borrower Funds Administrator (or on behalf of all Borrowers) or all Borrowers the Agent and each Lender directly affected therebythe Requisite Lenders, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modificationModification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document provision of any Note shall be effective unless in writing and signed by Agentwithout the written concurrence of the Lender which is the holder of that Note, (Biii) Documentation no amendment, Modification, termination or waiver of any provision of Section 8 or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of the Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, without the written concurrence of the Agent and (Civ) L/C Issuer under any Loan Document in each instance where approval of the Agent is required in Sections 2.12B, 5.24, 5.25B and 9.3, such approval shall also be required from the Requisite Lenders. Any waiver or consent shall be effective unless only in writing the specific instance and signed by L/C Issuer, for the specific purpose for which it was given. No notice to or demand on the Borrower in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment any case shall entitle the Borrower to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modificationModification, termination, waiver or consent effected in accordance with this Section 10.4 9.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and and, if signed by the Credit Parties. Notwithstanding anything to Borrower, on the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrower.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowerssuch Credit Party); provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowersor such Credit Party) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders or the Term A Lenders and the Convertible Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial any material portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); and/or (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer Agent or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that . Notwithstanding anything contained in this Agreement to the contrary (A) no amendment waiver or consent with respect to any Fee Letter Default (if in connection therewith Revolving Lenders have exercised their right to suspend the making or incurrence of Advances) or any Event of Default shall be effective for purposes of the conditions precedent to the making of Advances unless the same shall be in writing and signed by Revolving Lenders holding at least a majority of the Commitments in respect of the Revolving Facility and (B) the Conversion and Registration Rights Agreement may be amended, or rights or privileges thereunder waived, amended only in a writing executed only by accordance with the parties theretoterms thereof. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Adam Inc)
Amendment and Waivers. No provision of this Agreement may be amended or waived other than by an instrument in writing signed by the Company and Investors holding at least 662/3% of the Conversion Shares and Warrant Shares, determined as if all of the Notes held by Buyers then outstanding have been converted into Conversion Shares and all Warrants then outstanding have been exercised for Warrant Shares without regard to any limitations on the conversion of the Notes or on the exercise of the Warrants; provided that for theses purposes any Securities owned directly or indirectly by the Company shall be deemed not to be outstanding. Notwithstanding the preceding sentence to the contrary: (ai) Except as otherwise provided herein, no amendment, modification, termination amendment or waiver of the provisions of Section 9(e) or Section 9(f) of this Agreement shall be effective without the approval of the holders of all outstanding Securities, (ii) no amendment or waiver of the provisions of Section 2, Section 7, Section 8, Section 9(k), Section 9(l) or Section 9(m) of this Agreement shall be effective with respect to any holder of Securities unless it is approved by such holder, and (iii) no amendment shall be effective to the extent that it applies to less than all of the holders of the Notes then outstanding. No consideration shall be offered or paid to any holder of any Securities to amend or consent to a waiver or modification of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective the Transaction Documents unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction consideration is offered on identical terms to all of the Requisite Lenders) and Borrower Funds Administrator (on behalf holders of all Borrowers) or all Borrowers; providedsuch Securities. Notwithstanding anything herein to the contrary, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: amendment shall (i) increase extend the Commitment maturity of the Notes, reduce the interest rate, extend the time for payment of interest thereon, or reduce the principal amount thereof or premium, if any, thereon, or reduce any individual Lender (which action shall be deemed amount payable on redemption or repurchase thereof or affect any amounts due to directly affect all Lenders); any holder or (ii) reduce the principal ofaforesaid percentage of Conversion Shares and Warrant Shares, rate (or cash rate) the holders of interest on or fees payable with respect which are required to consent to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement holders of all Conversion Shares or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.Warrant Shares then outstanding..
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided hereinSubject to the terms and provisions of Sections 2.01(c) and 2.15, no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Document, or Document and no consent with respect to any departure by the Credit Parties Borrower or any of them other Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Requisite the Borrower, each Credit Party affected thereby, the Majority Revolver Lenders (or Agent at and the direction of Majority Lenders and acknowledged by the Requisite Lenders) Administrative Agent, and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no then such amendment, modificationwaiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, termination notwithstanding the foregoing,
(i) no such waiver, amendment, or waiver consent shall, unless in writing and signed by the Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby;
(A) extend the date for or change the amount of any principal installment due on the Loans under Section 2.07(a), do or postpone or delay any date for any payment of interest or fees due to such Lenders (or any of the following: them) under any other Loan Document or any Fee Letter;
(iB) increase (except as provided in Sections 2.01(c) and 2.15) or extend the Commitment of such Lender, or reinstate any individual Lender Commitment terminated pursuant to Section 8.02(a), except as provided in Section 11.06;
(which action shall be deemed to directly affect all Lenders); C) increase (iiexcept as provided in Sections 2.01(c) and 2.15) or extend any Lender’s Term B Loan Amount;
(D) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan or fees payable L/C Borrowing (other than with respect to post- default rates), or of any Loan fees or other Obligation; scheduled amounts payable hereunder (iiiexcluding any mandatory prepayments pursuant to Section 2.06) extend the scheduled due date, or under any other Loan Document or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Applicable Margin provided for herein;
(ivE) change reduce the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be required for Lenders, Agent the Lenders or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all LendersF) or alteramend this Section 11.01, as between or among change the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or percentage set forth in the other Loan Documents, release any Guaranty or release all or a substantial portion definition of the Collateral (which action shall be deemed to directly affect all term “Majority Lenders) (provided”, that consent to such release shall not be required if such release is made after change the occurrence and during the continuation of an Event of Default percentage set forth in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing BaseSupermajority Lenders” or amend any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess provision of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only this Agreement expressly requiring the consent of Agent and Documentation Agent); all the Lenders in order to take or refrain from taking any action;
(viiiG) change release the definition guaranty of any Guarantor under its Guaranty Agreement, except in accordance with the express provisions hereof or thereof, or release all or substantially all of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect Collateral except, in all Lenders); (ix) subordinate such cases in accordance with the Obligations hereunder express provisions of this Agreement or the Liens granted hereunder Security Documents;
(H) add any requirements to obtain the consent of any additional Person or under Persons to affect any assignment or participation pursuant to Section 11.06;
(I) extend any Maturity Date; or
(J) amend, consent to, or waive any provision of Section 8.04; and
(ii) no amendment, waiver or consent shall, unless in writing and signed by the other Loan DocumentsL/C Issuer in addition to the Majority Lenders, to any other Indebtedness each affected Lender or Lienall the Lenders, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document; and
(Aiii) Agent under any Loan Document shall be effective no amendment, waiver or consent shall, unless in writing and signed by Agent, (B) Documentation the Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and providedthe Majority Lenders, furthereach affected Lender or all the Lenders, that no amendment to any Fee Letter as the case may be amendedbe, or affect the rights or privileges thereunder waived, in a writing executed only by duties of the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in Administrative Agent under this Agreement or any other Loan Document; and
(iv) no amendment, no provider waiver or holder consent shall, unless in writing and signed by the Collateral Agent in addition to the Majority Lenders or all the Lenders, as the case may be, affect the rights or duties of the Collateral Agent under the Security Documents or any Bank Products other Loan Document; and
(v) with respect to any Incremental Facility, the Incremental Loan Amendment, and any waiver, consent or Cash Management Services other amendment to any term or provision of this Agreement necessary or advisable to effectuate any Incremental Facility or any provision thereof in accordance with the terms of, or the intent of, this Agreement, shall have be effective when executed by the Borrower, the Administrative Agent and each Incremental Term Lender or Incremental Revolving Lender making an Incremental Revolving Commitment or Incremental Term Commitment; and
(vi) with respect to reallocation of the Revolving Commitment in connection with the Revolver Reallocation Letter, the Revolver Reallocation Letter and any voting waiver, consent or approval rights hereunder other amendment to any term or provision of this Agreement necessary or advisable to effectuate any reallocation of the Revolving Commitment in accordance with the terms or the intent of the Revolver Reallocation Letter, shall be effective when executed by the Borrower, the Administrative Agent and the Majority Revolver Lenders;
(or vii) Interest Rate Protection Agreements, Incremental Loan Amendments (and related Incremental Loan documentation), the Revolver Reallocation Letter (and related documentation) and the Fee Letters shall not be deemed a Lenderto be Loan Documents for purposes of this Section 11.01(a); and
(viii) solely no amendment, waiver or consent shall, unless in writing and signed by virtue each of its status (1) the Borrower, (2) the Administrative Agent, (3) Revolving Lenders having more than 50% of the Aggregate Combined Revolving Commitment (as in effect at such time), or if the provider or holder Aggregate Combined Revolving Commitment has been terminated in full, the aggregate principal amount of outstanding Revolving Loans and L/C Obligations on the date of such agreements amendment, waiver or products consent, and (4) Term B Lenders having more than 50% of the Aggregate Outstanding Term B Loan Balance on the date of such amendment, waiver or consent, amend, waive, consent to, postpone or delay any mandatory prepayment pursuant to Section 2.06.
(b) If, in connection with any proposed change, waiver, discharge or any termination to any of the Obligations owing thereunderprovisions of this Agreement as contemplated by clauses (ii) through (viii), nor shall inclusive, of the second proviso to Section 11.01(a), the consent of any such provider the Majority Lenders is obtained but the consent of one or holder be more other Lenders whose consent is required (other than in their capacities is not obtained, then the Borrower shall have the right, so long as Lendersall non-consenting Lenders whose individual consent is required are treated the same, to replace require such non-consenting Lender to assign all of its interests, rights, and obligations under this Agreement and the extent applicable) for any matter hereunder or under any related Loan Documents to an assignee that shall assume such obligations pursuant to Section 11.13, so long as at such time of the other Loan Documentssuch replacement, including as to any matter relating each such assignee consents to the Collateral proposed change, waiver, discharge or the release of Collateral or any Credit Partytermination.
Appears in 1 contract
Amendment and Waivers. (a) Except Other than as otherwise provided hereinset forth in Section 10.4(b), no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Transaction Document, or and no consent to any departure by the Credit Parties Borrower or any of them other Loan Party therefrom, shall be effective unless in writing signed by the same Requisite Lenders, the Borrower and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in writing the specific instance and signed by for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(i) extend or increase the Commitment of any Lender without the written consent of such Lender (it being understood that (x) neither the consent of the Requisite Lenders nor the consent of any other Lender shall be required in connection therewith and (y) no amendment, modification or waiver of, or consent to departure from, any condition precedent to funding of a Loan, Default, Event of Default, representation, warranty, covenant, mandatory prepayment or mandatory reduction of the Commitments shall constitute an extension or increase of any Commitment of any Lender);
(ii) postpone any date fixed for any payment of the principal amount or interest due to the Lenders (or any of them) without the written consent of such Lender(s) (it being understood that (x) neither the consent of the Requisite Lenders nor the consent of any other Lender shall be required in connection therewith and (y) a waiver of any Default, Event of Default, representation, warranty, covenant, mandatory prepayment or mandatory reduction of the Commitments (including any amendment of any ratio used in the calculation of such prepayment or reduction amount or in the component definitions thereof and any extensions for administrative convenience as may be agreed by the Administrative Agent (acting at the direction of the Requisite Lenders)) shall not constitute a postponement of any such date);
(iii) reduce the principal amount of, or the rate of interest specified herein on, any Term Loan, or any fees or other amounts payable hereunder or under any other Transaction Document, without the written consent of each Lender directly and Borrower Funds Administrator adversely affected thereby (on behalf of all Borrowers) or all Borrowers; provided, it being understood that no amendment, modification, termination modification or waiver shallof, unless or consent to departure from, any Default, Event of Default, representation, warranty, covenant, mandatory prepayment or mandatory reduction of the Commitments (including any amendment of any ratio used in writing the calculation of such prepayment or reduction amount or in the component definitions thereof) and signed no change to the definition of any ratio used in the calculation of interest rate or fees therein or in the component definitions, shall in any such case be construed as such a reduction or forgiveness; it being further understood that neither the consent of the Requisite Lenders nor the consent of any other Lender shall be required in connection therewith); provided, however, that only the consent of the Requisite Lenders shall be necessary to amend the definition of “Default Rate” to reduce the Default Rate or to waive any obligation of the Borrower to pay interest at the Default Rate;
(iv) alter the pro rata sharing of payments required by Borrower Funds Administrator (on behalf this Agreement without the written consent of all Borrowers) or all Borrowers and each Lender directly and adversely affected thereby, do any thereby (it Uniti – Bridge Loan and Security Agreement #97751373v29 being understood that neither the consent of the following: (i) increase Requisite Lenders nor the Commitment consent of any individual other Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for in connection therewith);
(v) change any provision of this Section 10.4(a) or the definition of “Requisite Lenders, Agent ” or any other provision hereof specifying the number or percentage of them Lenders required to take amend, waive or otherwise modify any action rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender directly and adversely affected thereby;
(which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (vvi) except as otherwise expressly permitted herein under this Agreement or in the any other Loan DocumentsTransaction Document, release any Guaranty a material portion the Collateral securing the Obligations, or release all or a substantial portion substantially all of the Collateral (which action shall be deemed to directly affect all Lenders) (providedGuaranty, that in each case without the written consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); each Lender;
(vii) change the definition of “Permitted Change of Control New Owner” without the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the written consent of Agent and Documentation Agent)each Lender; or
(viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, Transaction Documents to any other Indebtedness or LienLien (including without limitation any Indebtedness or Lien issued under this Agreement or any other agreement), as the case may be; and/or , without the written consent of each Lender directly and adversely affected thereby (x) it being understood that neither the consent to of the assignment or other transfer by any Credit Party or Requisite Lenders nor the consent of any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan DocumentLender shall be required in connection therewith); and provided, further, that (x) no amendment, modificationwaiver or consent shall, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to the Lenders required hereinabove above, affect the rights or duties of Administrative Agent under this Agreement or any other Transaction Document and (y) any amendment or modification to take such action; and provided, further, that no amendment to any the Administrative Agent Fee Letter may be amendedLetter, or waiver of any rights or privileges thereunder waivedthereunder, in a writing executed shall only by require the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender of the Borrower and the Credit PartiesAdministrative Agent. Notwithstanding anything herein to the contrary hereincontrary, no Deteriorating Lender the Loan Parties shall be permitted to rely on any consent or Delinquent Lender waiver executed by Administrative Agent as binding upon Lenders and conclusive evidence that the Requisite Lenders shall have any right to approve or disapprove any amendmentapproved, waiver or consent hereunder, except that if required under the Commitment of such Lender may not be increased or extended without the consent of such Lenderterms hereof.
(b) Notwithstanding anything herein to the contrary and subject to the following sentence, this Agreement may be amended in writing by the Borrower and the Administrative Agent without the consent of any other party for the purpose of providing for Subsidiary Guarantors (including Designated Guarantors) to become party hereto and to hold Collateral to the extent 100% of the equity interest in such subsidiary guarantors is pledged as additional Collateral. In furtherance of the foregoing sentence, the Administrative Agent may post a copy of such amendment for the Lenders and if by 5:00 p.m. New York City time on the fifth (5th) Business Day following such posting the Administrative Agent has not received objections from Lenders constituting Requisite Lenders, then such amendment shall be deemed Uniti – Bridge Loan and Security Agreement #97751373v29 consented to by the Requisite Lenders and the Administrative Agent shall be entitled to rely upon such consent to execute any such amendment. Notwithstanding anything to the contrary contained in this Section 10.4, this Agreement, the other Transaction Documents and any guarantees, collateral security documents and related documents executed by Loan Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent (acting at the direction of the Requisite Lenders) and may be, together with this Agreement, amended, amended and restated, supplemented and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any Lender (1) in order to comply with local Applicable Law or advice of local counsel, (2) to cure any ambiguity, mistake, defect, inconsistency, obvious error or any error or omission of a technical or administrative nature or to effect any necessary or desirable technical change and/or (3) in order to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Transaction Documents.
(c) Notwithstanding anything herein to the contrary, this Agreement may be amended in writing by the Borrower, the Facility Agent and the Administrative Agent without the consent of any other party for the purpose of making certain mechanical, technical or administrative amendments in order to align payment provisions of this Agreement with the Interest Rate Protection Agreement.
(d) No amendment, waiver or consent shall, unless in writing and signed by Account Bank or Verification Agent, affect the rights or duties of Account Bank or Verification Agent under this Agreement or any other Loan Transaction Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder .
(or be deemed a Lendere) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, Notwithstanding anything herein to the extent applicablecontrary (i) for the Management Agreement may be amended in accordance with Section 6.18 without the need to obtain any matter hereunder or under additional consents not set forth therein and (ii) the Account Bank Control Agreement may be amended as set forth therein without the need to obtain any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Partyadditional consents.
Appears in 1 contract
Samples: Bridge Loan and Security Agreement (Uniti Group Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties any Co-Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders” or “Requisite Class Lender” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Commitments are included on the Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (f) postpones the date on which any interest or any fees are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Facility Fee for purpose of this clause (g); (h) increases the maximum duration of Interest Periods permitted hereunder; (i) releases all or substantially all of the Collateral; (j) releases of all or substantially all the value of the Guaranty; (k) amends the definition of “Pro Rata Shares”; or (l) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5 shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective unless the same shall be in writing and signed only if evidenced by Requisite Lenders (or Agent at the direction a written consent of the Requisite LendersLenders and the Administrative Agent. In addition, (i) and Borrower Funds Administrator [reserved], (on behalf of all Borrowersii) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, unless (iii) no increase in writing the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and signed by Borrower Funds Administrator (on behalf agreed that in no event shall waivers or modifications of all Borrowers) conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers and each Lender directly affected thereby, do any of the following: (i) Commitments be deemed to constitute an increase of the Commitment of any individual Lender (which action and that an increase in the available portion of any Commitment of any Lender shall not be deemed to directly affect all Lenders); (ii) reduce constitute an increase in the principal ofCommitment of such Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 2.1A(ii) or any other provision of this Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans shall be effective without the written consent of the Swing Line Lender, (v) no amendment, modification, termination or waiver of any provision of Section 3 or any other provision of this Agreement relating to the rights or duties obligations of (A) Agent under any Loan Document an Issuing Bank shall be effective unless in writing and signed by Agentwithout the written concurrence of such Issuing Bank, (Bvi) Documentation no amendment, modification, termination or waiver of any provision of Section 9 or of any other provision of this Agreement which, by its terms, expressly requires the approval or concurrence of the Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, without the written concurrence of the Administrative Agent and (Cvii) L/C Issuer under any Loan Document no amendment or modification of the First-Out Provisions shall be effective unless in writing without the consent of all Lenders. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of that Lender and signed by L/C Issuerno amendment, in each casemodification, in addition to Lenders required hereinabove to take such action; and providedtermination or waiver which has the effect of changing any payment, further, that no amendment voluntary or mandatory prepayments or Commitment reductions applicable to any Fee Letter may be amended, or rights or privileges thereunder waived, Class (the “Affected Class”) in a writing executed manner that disproportionately disadvantages such Class relative to the other Class shall be effective without the written concurrence of the Requisite Class Lenders of the Affected Class (it being understood and agreed that any amendment, modification, termination or waiver of any such provision which only by postpones or reduces any voluntary or mandatory prepayment or Commitment reduction from those set forth in Section 2.4 with respect to one Class but not the parties theretoother Classes shall be deemed to disproportionately disadvantage such one Class but not to disproportionately disadvantage such other Classes for purposes of this clause). Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Borrowers in any case shall entitle the Borrowers to any other or further notice or demand in similar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and, if signed by the Borrowers, on the Borrowers and the Credit PartiesHoldings. Notwithstanding anything in this Section 10.5A to the contrary hereincontrary, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of and the other Loan DocumentsDocuments may be amended (or amended and restated) (i) with the written approval of the Administrative Agent, including as Holdings and the lenders of the additional Commitments incurred pursuant to Section 2.1A(iii) to implement the additional Commitments incurred pursuant to and in accordance with Section 2.1A(iii) or (ii) with the written approval of the Administrative Agent, Holdings and the Accepting Lenders to implement any matter relating Loan Modification Offer that becomes effective pursuant to the Collateral or the release of Collateral or any Credit Partyand in accordance with Section 2.9.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modificationNo Modification, termination or waiver of any provision of this Agreement Agreement, of the Notes or of any other Loan Document, or consent to any departure by the Credit Parties or any of them Loan Party therefrom, shall in any event be effective unless without the same shall be in writing and signed by written concurrence of the Requisite Lenders and each Loan Party that is party to the relevant Loan Document; provided that any such Modification, termination, waiver or consent which: (a) reduces or Agent at forgives the direction principal amount of any of the Loans or reduce or forgive any prepayment premiums payable under the subsection 2.6B(iii); (b) reduces the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf , additional extensions of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination or waiver shall, unless credit pursuant to this Agreement may be included in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” on substantially the same basis as the Loans are included on the Effective Date); (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of the Loans (except in accordance with the terms of subsection 2.12); (e) postpones the date on which any interest is payable; (f) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to subsection 2.4E) or the amount of any fees (including the extension fee payable under subsection 2.12) payable hereunder; (g) increases the maximum duration of Interest Periods permitted hereunder; (h) releases all or substantially all of the Collateral; (i) releases Holdings from its obligations under any Guaranty or, except as provided in any applicable Guaranty or in connection with Asset Sales to the extent permitted under subsection 6.8, releases all or substantially all of the Subsidiary Guarantors from their obligations under the Guaranty; (j) changes subsections 2.6D(iii) or 9.4 or amends the definition of “Pro Rata Share” in a manner that would alter the pro rata sharing of payments required thereby; or (which action k) changes in any manner the provisions contained in this subsection 9.5, shall be deemed effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed being directly affect all Lendersaffected by such Modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that any Modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” shall be effective only if evidenced by a written concurrence of the Requisite Lenders and the Administrative Agent. In addition to the written concurrence of the Requisite Lenders and each Loan Party that is party to the relevant Loan Document, (i) no amendment, modificationModification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document provision of any Note shall be effective unless in writing without the written concurrence of the Lender which is the holder of that Note, and signed (ii) no Modification, termination or waiver of any provision of Section 8 or of any other provision of this Agreement which, by Agentits terms, (B) Documentation expressly requires the approval or concurrence of the Administrative Agent under any Loan Document or the Collateral Agent shall be effective unless in writing and signed by Documentation without the written concurrence of the Administrative Agent or the Collateral Agent, and (C) L/C Issuer under any Loan Document as applicable. Any waiver or consent shall be effective unless only in writing the specific instance and signed by L/C Issuer, for the specific purpose for which it was given. No notice to or demand on any Borrower in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment any case shall entitle the Borrowers to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modificationModification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 9.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and on the Credit PartiesBorrowers. Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Requisite Lenders, the Administrative Agent and the Borrowers (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably (including with respect to prepayments) in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof and in the benefits of all the Collateral, (b) to provide for the Lenders holding such additional credit facilities to share ratably with the Lenders holding Loans, and (c) to include appropriately the Lenders holding such credit facilities in any determination of the Requisite Lenders. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that contained in this Section 9.5: (i) the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything parties to the contrary Agent Letters may (1) enter into written amendments, supplements or modifications to the Agent Letters (including amendments and restatements thereof), for the purpose of adding any provisions thereto or changing in this Agreement any manner the rights thereunder of the parties thereto or (2) waive, on such terms and conditions as may be specified in the instrument of waiver, any of the requirements of the Agent Letters, as the case may be, or any other Loan Document, no provider Default or holder Event of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, Default to the extent applicable(and only to the extent) for relating to the Agent Letters, it being understood that the waiver of any matter hereunder Default or under Event of Default (or portion thereof) relating to any of the other Loan DocumentsDocuments may be accomplished only as set forth in the immediately preceding paragraph; (ii) the Collateral Agent may pursuant to the terms and conditions set forth in the Sponsor Guaranty or the Environmental Indemnity (as applicable), including but without obtaining the consent of the Requisite Lenders, release either of the guarantors or indemnitors that is a party to such agreement from their obligations thereunder and (at the Collateral Agent’s election) require the Borrowers and Holdings to deliver an amended or replacement Sponsor Guaranty or Environmental Indemnity (as to any matter relating applicable) in form and substance, and executed by a substitute guarantor or indemnitor, acceptable to the Collateral Agent in its reasonable discretion; or (iii) the release Collateral Agent may in accordance with the applicable terms of Collateral or this Agreement, but without obtaining the consent of the Requisite Lenders, (1) deliver to the Control Account Bank, updated and revised Operating Expenses Budgets, Carrying Costs Budgets and Predevelopment Expenses Budgets, (2) amend and revise the schedules to any Credit PartyAccount Control Agreement, and (3) amend the disbursement instructions with respect to funds on deposit in the Lockbox Account, the Cash Management Account the Interest Reserve Account, the Operating Expense Account, the Carrying Costs Reserve Account, the Predevelopment Expenses Reserve Account and the Marriott Parking Dispute Reserve Account.
Appears in 1 contract
Samples: Credit Agreement (FX Real Estate & Entertainment Inc.)
Amendment and Waivers. (a) Except as otherwise provided hereinSubject to the terms and provisions of Sections 2.01(c) and 2.15, no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Document, or Document and no consent with respect to any departure by the Credit Parties Borrower or any of them other Credit Party therefrom, shall be effective unless the same shall be in writing and signed by Requisite the Borrower, each Credit Party affected thereby, the Majority Revolver Lenders (or Agent at and the direction of Majority Lenders and acknowledged by the Requisite Lenders) Administrative Agent, and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no then such amendment, modificationwaiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that, termination notwithstanding the foregoing,
(i) no such waiver, amendment, or waiver consent shall, unless in writing and signed by the Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby;
(A) extend the date for or change the amount of any principal installment due on the Loans under Section 2.07(a), do or postpone or delay any date for any payment of interest or fees due to such Lenders (or any of the following: them) under any other Loan Document or any Fee Letter;
(iB) increase (except as provided in Sections 2.01(c) and 2.15) or extend the Commitment of such Lender, or reinstate any individual Lender Commitment terminated pursuant to Section 8.02(a), except as provided in Section 11.06;
(which action shall be deemed to directly affect all Lenders); C) increase (iiexcept as provided in Sections 2.01(c) and 2.15) or extend any Lender's Term B Loan Amount;
(D) reduce the principal of, or the rate (or cash rate) of interest specified herein on any Loan or fees payable L/C Borrowing (other than with respect to post-default rates), or of any Loan fees or other Obligation; scheduled amounts payable hereunder (iiiexcluding any mandatory prepayments pursuant to Section 2.06) extend the scheduled due date, or under any other Loan Document or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Applicable Margin provided for herein;
(ivE) change reduce the percentage of the Commitments, Commitments or of the aggregate unpaid principal amount of the Loans, or of the Lenders Loans which shall be required for Lenders, Agent the Lenders or any of them to take any action hereunder hereunder;
(which action shall be deemed to directly affect all LendersF) or alteramend this Section 11.01, as between or among change the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or percentage set forth in the other Loan Documents, release any Guaranty or release all or a substantial portion definition of the Collateral (which action shall be deemed to directly affect all term "Majority Lenders) (provided", that consent to such release shall not be required if such release is made after change the occurrence and during the continuation of an Event of Default percentage set forth in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” "Supermajority Lenders" or amend any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess provision of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only this Agreement expressly requiring the consent of Agent and Documentation Agent); (viii) change all the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless Lenders in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove order to take such or refrain from taking any action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.;
Appears in 1 contract
Amendment and Waivers. (a1) Except as otherwise provided herein, no amendment, modification, termination or No waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or Borrower therefrom shall in any of them therefrom, shall event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of an Advance shall not be construed as a waiver of any Default or Event of Default, regardless of whether Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(2) Neither this Agreement nor any provision hereof may be waived, amended or modified (except pursuant to an agreement or agreements in writing entered into by Borrower and signed the Agent), except for an amendment to increase the Maximum Revolving Loan Amount in accordance with Section 2.14 hereof, such amendment to require the consent of Agent and such Lenders so increasing their Revolving Loan Commitment, or by Requisite Lenders (or Borrower and Agent at with the direction consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers, without taking into account the Loans held by Non-Funding Lenders; provided, provided that no amendmentsuch agreement shall:
(1) increase the Revolving Loan Commitment or Term Loan Commitment of any Lender without the written consent of such Lender;
(2) reduce the principal amount of any Loan or reduce the rate of interest thereon (other than a waiver of post-default interest), modificationor reduce any fees payable hereunder, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf without the written consent of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any ;
(3) postpone the scheduled date of payment of the following: (i) increase the Commitment principal amount of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal ofLoan, rate (or cash rate) of any interest on thereon, or any fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due datehereunder, or reduce the amount due on of, waive or excuse any scheduled due datesuch payment, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; scheduled date of expiration of any Revolving Loan Commitment or Term Loan Commitment, without the written consent of each Lender directly affected thereby,
(iv4) change the percentage any of the Commitments, provisions of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed any other provision hereof specifying the number or percentage of Lenders required to directly affect all Lenders); (ix) subordinate the Obligations waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the Liens granted hereunder or under the other Loan Documents, to written consent of each Lender;
(5) release any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and Guarantor from its obligations under any Loan Documenta Guaranty without the written consent of each Lender; and providedor
(6) except as otherwise specifically provided in this Agreement, furtherrelease all or substantially all of the Collateral, without the written consent of each Lender; provided further that no amendmentsuch agreement shall amend, modification, termination modify or waiver affecting otherwise affect the rights or duties of Agent hereunder without the prior written consent of Agent.
(A3) Agent under Notwithstanding the foregoing, this Agreement and any other Loan Document shall may be effective unless amended (or amended and restated) with the written consent of the Requisite Lenders, Agent and Borrower (x) to add one or more credit facilities to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in writing respect thereof to share ratably in the benefits of this Agreement and signed by Agent, (B) Documentation Agent under any the other Loan Document shall be effective unless Documents with the Loan and the accrued interest and fees in writing and signed by Documentation Agent, respect thereof and (Cy) L/C Issuer under to include appropriately the Lenders holding such credit facilities in any Loan Document shall be effective unless in writing determination of the Requisite Lenders and signed by L/C IssuerLenders.
(4) If, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to connection with any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any proposed amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then Agent or Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to Agent shall agree, as of such date, to purchase for cash the principal balance of the Loans due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (a) of Section 12.2, and (ii) Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by Borrower hereunder to and including the date of termination, including without limitation any indemnity payments due to such Non-Consenting Lender hereunder for which the amount is known.
(b5) Notwithstanding anything to the contrary in herein Agent may, with the consent of Borrower only, amend, modify or supplement this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan DocumentsDocuments to cure any ambiguity, including as to any matter relating to the Collateral omission, mistake, defect or the release of Collateral or any Credit Partyinconsistency.
Appears in 1 contract
Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties Borrower or any of them Indemnitor therefrom, shall in any event be effective unless the same shall be in writing and signed by Borrower and the Requisite Lenders (or by Agent at on their behalf) without taking into account the direction of Loans held by Non-Funding Lenders, and then such amendment, waiver or consent shall be effective only in the Requisite Lenders) specific instance and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersfor the specific purpose for which given; provided, however, that no amendment, modification, termination waiver or waiver consent shall, unless in writing and signed by Borrower Funds Administrator (on behalf without the consent of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the followingLenders: (i) increase change the Commitment number of Lenders required for the Lenders or any individual Lender (which of them to take any action shall be deemed to directly affect all Lenders)hereunder; (ii) reduce amend any of the principal of, rate provisions of Sections 9.2 or this Section 10.4; (iii) amend the sharing of payments by Lenders according to their Pro Rata Shares pursuant to Section 13.3 or cash ratethe definitions of “Pro Rata Share” or “Requisite Lenders”; (iv) release all or substantially all of interest on the value of guaranties delivered by the Indemnitor or fees payable with respect all or substantially all of the Collateral; (v) release Borrower from all of the Obligations other than upon payment in full of the Obligations; (vi) consent to the assignment or other transfer by Borrower or any other party to any Loan Documents (other than Agent or other Obligationany Lender) of any of their rights and obligations under any Loan Document; or (iiivii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or fees payable under with respect to any Loan Documentportion of the Loan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, waiver or consent shall, without the consent of each Lender directly affected thereby: (i) reduce the amount of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), or the interest rate (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) applicable to, the Loans or any fees or other amounts payable hereunder; (ii) postpone any date on which any payment of principal of, or interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2), the Loans or any fees or other amounts payable hereunder is required to be made; (iii) increase or extend the Revolving Loan Availability of any Lender; or (iv) reduce the principal of, rate of interest on (other than a waiver of the incurring of or payment of interest at the Default Rate pursuant to Section 3.2) or fees payable with respect to any portion of the Loan. Notwithstanding the foregoing, the Agent and the Borrower shall be permitted to amend any provision of the Loan Documents (and such amendment shall become effective without any further action or consent of any other party to any Loan Document) if the Agent and the Borrower shall have jointly identified an obvious error or any error, ambiguity, defect or inconsistency or omission of a technical or immaterial nature in any such provision.
(b) Each amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless only in writing the specific instance and signed by Agentfor the specific purpose for which it was given. No amendment, (B) Documentation modification, termination or waiver shall be required for Agent under to take additional Collateral pursuant to any Loan Document shall be effective unless in writing and signed by Documentation Agent, and Document.
(Cc) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation AgentManaging Agents, L/C Issuer, each Lender Lenders and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrower.
(bd) Notwithstanding anything to the contrary in this Agreement No consent or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services agreement by Borrower shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities to amend, modify, change, restate, waive, supplement, discharge, cancel or terminate any provision of Article XII, so long as Lenders, no additional duties are required to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Partybe assumed by Borrower.
Appears in 1 contract
Samples: Loan and Security Agreement (Enova International, Inc.)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Notes, or consent to any departure by the Credit Parties Borrower or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which: (a) reduces or forgives the principal amount of any of the Loans; (b) reduces the percentage specified in the definition of the “Requisite Lenders”; (c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders; (d) postpones the scheduled final maturity date of any of the Loans or the scheduled date of termination of any of the Commitments; (e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Loans or of any scheduled reduction or termination of the Commitments; (f) postpones the date on which any interest or any fees are payable; (g) decreases the interest rate borne by any of the Loans (other than any waiver of any increase in the interest rate applicable to any of the Loans pursuant to Section 2.2E) or the amount of any fees payable hereunder; it being understood that any amendment to the definition of “Capitalization Ratio” will not constitute a reduction in the Facility Fee or Applicable Margin for purpose of this clause (g); (h) increases the maximum duration of Interest Periods permitted hereunder; (i) [reserved]; (j) releases of all or substantially all the value of the Guaranty; (k) amends the definition of “Pro Rata Shares”; or (l) changes in any manner the provisions contained in Sections 2.4B, 2.4C(iii), 8.1 or 10.4, or this Section 10.5 shall be effective only if evidenced by a writing signed by or on behalf of all the Lenders to whom Obligations are owed or who have Commitments outstanding being directly affected by such amendment, modification, termination, waiver or consent (the consent of the Requisite Lenders not being required for any such change); provided further that any amendment, modification, termination, waiver or consent which amends or modifies the definition of “Approved Fund,” “Eligible Assignee,” or “Fund,” or Section 10.1 to the extent further restricting assignments, shall be effective unless the same shall be in writing and signed only if evidenced by Requisite Lenders (or Agent at the direction a written consent of the Requisite LendersLenders and the Administrative Agent. In addition, (i) and Borrower Funds Administrator [reserved], (on behalf of all Borrowersii) or all Borrowers; provided, that no amendment, modification, termination or waiver shallof any provision of any Note shall be effective without the written concurrence of the Lender which is the holder of that Note, unless (iii) no increase in writing the Commitments of any Lender over the amount thereof then in effect shall be effective without the written concurrence of that Lender, it being understood and signed by Borrower Funds Administrator (on behalf agreed that in no event shall waivers or modifications of all Borrowers) conditions precedent, covenants, Defaults, Events of Default or of a mandatory prepayment or a reduction of any or all Borrowers and each Lender directly affected thereby, do any of the following: (i) Commitments be deemed to constitute an 98 CREDIT AGREEMENT increase of the Commitment of any individual Lender (which action and that an increase in the available portion of any Commitment of any Lender shall not be deemed to directly affect all Lenders); (ii) reduce constitute an increase in the principal ofCommitment of such Lender, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments[reserved], of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents[reserved], release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting of any provision of Section 9 or of any other provision of this Agreement which, by its terms, expressly requires the rights approval or duties concurrence of (A) the Administrative Agent under any Loan Document shall be effective unless in writing and signed by without the written concurrence of the Administrative Agent. The Administrative Agent may, (B) Documentation Agent under but shall have no obligation to, with the concurrence of any Loan Document Lender, execute amendments, modifications, waivers or consents on behalf of that Lender. Any waiver or consent shall be effective unless only in writing the specific instance and signed by Documentation Agent, and (C) L/C Issuer under for the specific purpose for which it was given. No notice to or demand on the Borrower in any Loan Document case shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment entitle the Borrower to any Fee Letter may be amended, other or rights further notice or privileges thereunder waived, demand in a writing executed only by the parties theretosimilar or other circumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and, if signed by the Borrower, on the Borrower and the Credit PartiesHoldings. Notwithstanding anything in this Section 10.5A to the contrary hereincontrary, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of and the other Loan DocumentsDocuments may be amended (or amended and restated) with the written approval of the Administrative Agent and Holdings to cure any ambiguity, including omission, defect or inconsistency so long as to any matter relating the Lenders shall have received at least five (5) Business Days prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Collateral or Lenders, a written notice from the release of Collateral or any Credit PartyRequisite Lenders stating that the Requisite Lenders object to such amendment.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Taylor Morrison Home Corp)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination No amendment or waiver of any provision of this Agreement or any other Loan Document, or nor consent to any departure by the Credit Parties or any of them Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (the Required Lenders, and then such waiver or Agent at consent shall be effective only in the direction of specific instance and for the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersspecific purpose for which given; provided, however, that no amendment, modification, termination waiver or waiver shall, consent shall (a) unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment amount or extend the expiration date of any individual Lender (which action shall be deemed to directly affect all Lenders); Lender’s Commitment, (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any on, the Loan or other Obligation; amounts payable hereunder, or (iii) extend the scheduled due datepostpone any date fixed for any payment of principal of, or reduce interest on, the amount due on any scheduled due date, of any installment of principal, interest Loan or fees other amounts payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereofhereunder; (ivb) unless in writing and signed by all of the Lenders, do any of the following: (i) change the percentage Commitment Percentage of the Commitments, any Lender or of the aggregate unpaid principal amount of the LoansLoan, or the number of the Lenders which that shall be required for Lenders, Agent the Lenders or any of them to take any action hereunder hereunder, (which action shall be deemed to directly affect all Lendersii) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion substantially all of the Collateral or release any Guarantor from its obligations under the Guarantee and Collateral Agreement, (which action shall be deemed to directly affect all Lendersiii) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or amend this Section 10.4 11.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” Required Lenders”, or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”iv) if as a result thereof the amounts available to be borrowed by Borrowers would be increased release Borrower from all of its obligations hereunder; or (which action shall be deemed to directly affect all Lendersc) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, the Agent (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to the Lenders required hereinabove above to take such action; and provided), furtheras applicable, that no amendment to amend, modify or waive any Fee Letter may be amended, provision of Section 10 hereof or affect the rights or privileges thereunder waived, in a writing executed only by duties of the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in Agent under this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Loan Agreement (Ener1 Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of Neither this Agreement or nor any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with the provisions of this subsection 10.
1. The Majority Lenders may, or, with the written consent of -50- 57 the Majority Lenders, the Agent may, from time to time, (a) enter into with the Borrower written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any departure by provisions to this Agreement or the Credit Parties other Loan Documents or changing in any manner the rights of the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such terms and conditions as the Majority Lenders or the Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of them therefromDefault and its consequences; PROVIDED, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; providedHOWEVER, that no such waiver and no such amendment, modificationsupplement or modification shall:
(i) reduce the amount or extend the scheduled date of maturity of any Loan or of any installment thereof, termination or waiver shallreduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof or increase the amount or extend the expiration date of any Lenders' Commitments, unless in writing and signed by Borrower Funds Administrator (on behalf each case without the consent of all Borrowers) or all Borrowers and each Non-Defaulting Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); ;
(ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 any provision of this subsection 10.1 or this Section 10.4 or reduce the definitions of the terms used percentage specified in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of Majority Lenders, or consent to the term “Borrowing Base” assignment or transfer by the Borrower of any component definition thereof of its rights and obligations under this Agreement and the other Loan Documents, in each case without the written consent of all the Non-Defaulting Lenders;
(includingiii) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, in each case without limitationthe written consent of all the Non-Defaulting Lenders;
(iv) take any action having the effect of releasing any of the material collateral or material guarantee obligations provided for in any Guarantee or Security Document, “Eligible Inventory” in each case without the written consent of the Non-Defaulting Lenders;
(v) amend, modify or waive any provision of Section 9 without the written consent of the then Agent. Any such waiver and “Eligible Credit Card Receivables”any such amendment, supplement or modification shall apply equally to each of the Lenders (including Defaulting Lenders) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action and shall be deemed to directly affect binding upon the Borrower, the Lenders (including Defaulting Lenders), the Agent and all future holders of the Loans. In the case of any waiver, the Borrower, the Lenders (including Defaulting Lenders) by an amount in excess of $1,500,000, provided that and the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed restored to directly affect all Lenders); (ix) subordinate the Obligations their former positions and rights hereunder or the Liens granted hereunder or and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; no such waiver shall extend to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment subsequent or other transfer by any Credit Party Default or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer Event of Default or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have impair any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lenderconsequent thereon.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Amendment and Waivers. (a) Except Other than as otherwise provided hereinset forth in Section 10.4(b), no amendment, modification, termination amendment or waiver of any provision of this Agreement or any other Loan Transaction Document, or and no consent to any departure by the Credit Parties or any of them Borrower therefrom, shall be effective unless in writing signed by the same Requisite Lenders, the Borrower and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in writing the specific instance and signed by Requisite for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall (without the consent of each Lender directly and adversely affected thereby):
(i) extend or increase the Commitment of any Lender without the written consent of such Lender;
(ii) postpone any date fixed for any payment of the principal amount or interest, Make-Whole Amount or Prepayment Premium, in each case, due to the Lenders (or Agent at any of them) without the direction written consent of such Lender(s);
(iii) reduce the Requisite Lenders) and Borrower Funds Administrator principal amount of, or the rate of interest, amortization (on behalf including, for the avoidance of all Borrowers) doubt, the Monthly Amortization Amount), Make-Whole Amount or all Borrowers; providedPrepayment Premium, that no amendmentin each case, modificationspecified herein on, termination any Term Loan, or waiver shallany fees or other amounts payable hereunder or under any other Transaction Document, unless in writing and signed by Borrower Funds Administrator (on behalf without the written consent of all Borrowers) or all Borrowers and each Lender directly affected thereby; provided, do any however, that only the consent of the following: (i) increase the Commitment of any individual Lender (which action Requisite Lenders shall be deemed necessary to directly affect all Lenders); (ii) amend the definition of “Default Rate” to reduce the principal of, rate (Default Rate or cash rate) to waive any obligation of the Borrower to pay interest on or fees payable with respect to any Loan or other Obligation; (iii) extend at the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; Default Rate;
(iv) change the percentage of the Commitmentsamend Section 2.7, of the aggregate unpaid principal amount of the LoansSection 7.15, Section 9.2, Section 13.3 or otherwise alter, or have the intended effect of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lendersaltering, the amount payable to pro rata sharing of payments required by this Agreement without the written consent of each hereunder; Lender;
(v) except as otherwise permitted herein or in the other Loan Documents, release change any Guaranty or release all or a substantial portion provision of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;
(which action shall be deemed vi) except as otherwise expressly permitted under this Agreement or any other Transaction Document as of the Closing Date (including pursuant to directly affect all LendersSection 9(e)(vi)(E) of the DBS Subscriber Sub A&R LLC Agreement); , release a material portion of the Collateral securing the Obligations or any guaranty without the written consent of each Lender;
(ixvii) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, Transaction Documents to any other Indebtedness or Lienobligation, whether in right of payment, lien priorities or otherwise (including, in each case, without limitation any Indebtedness or Lien issued under this Agreement or any other agreement), as the case may be, without written consent of each Lender;
(viii) amend Section 2.16 or Section 7.13; and/or and
(xix) consent modify this Agreement to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) permit non-pro rata open market purchases of any of the rights or obligations held by Lxxxxxx hereunder to the Borrower, DISH DBS or any of their rights and obligations under any Loan Document; respective Subsidiaries or Affiliates. and provided, further, that (x) no amendment, modificationwaiver or consent shall, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation the Administrative Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to the Lenders required hereinabove above, affect the rights or duties of the Administrative Agent under this Agreement or any other Transaction Document, (y) any amendment or modification to take such action; and provided, further, that no amendment to any the Administrative Agent Fee Letter may be amendedLetter, or waiver of any rights or privileges thereunder waivedthereunder, in a writing executed shall only by require the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender of the Borrower and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove Administrative Agent and (z) any amendment, waiver or consent to amend Section 7.2 or Section 7.3 or Article I to increase, or have the effect of increasing, the Borrower’s capacity to incur Indebtedness or incur or create Liens hereunder, except that the Commitment of such Lender may not be increased or extended without shall require the consent of such Lenderthe Supermajority Lenders. Notwithstanding anything herein to the contrary, the Borrower shall be permitted to rely on any consent or waiver executed by the Administrative Agent as binding upon Lenders and conclusive evidence that the Requisite Lenders shall have approved, if required under the terms hereof.
(b) Notwithstanding anything herein to the contrary in and subject to the following sentence, this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or may be deemed a Lender) solely amended in writing by virtue of its status as the provider or holder of such agreements or products or Borrower and the Obligations owing thereunder, nor shall Administrative Agent without the consent of any such provider or holder be required (other than in their capacities as Lenders, party for the purpose of providing for subsidiary guarantors owned by the Borrower to become party hereto and to hold Collateral to the extent applicable) for any matter hereunder or under any 100% of the other Loan DocumentsEquity Interest in such subsidiary guarantors is pledged as additional Collateral. In furtherance of the foregoing sentence, including as the Administrative Agent may post a copy of such amendment for the Lenders and if by 5:00 p.m. (New York City time) on the fifth Business Day following such posting the Administrative Agent has not received objections from Lenders constituting Requisite Lenders, then such amendment shall be deemed consented to by the Requisite Lenders and the Administrative Agent shall be entitled to rely upon such consent to execute any matter relating such amendment.
(c) [Reserved].
(d) Notwithstanding anything herein to the Collateral or contrary the release of Collateral or Management Agreement may be amended in accordance with Section 6.18 without the need to obtain any Credit Partyadditional consents not set forth therein.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowerseach Credit Party; provided, that no amendment, modification, termination or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers each Credit Party and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial any material portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 10.3 or the definitions of the terms used in Section 9.2 or this Section 10.4 10.3 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 10.3 (which action shall be deemed to directly affect all Lenders); and/or (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer Agent or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided. Notwithstanding anything contained in this Agreement to the contrary, further, that no amendment waiver or consent with respect to any Fee Letter may Default (if in connection therewith Lenders have exercised their right to suspend the making or incurrence of Advances) or any Event of Default shall be amended, or rights or privileges thereunder waived, effective for purposes of the conditions precedent to the making of Advances unless the same shall be in writing and signed by Lenders holding at least a writing executed only by majority of the parties theretoCommitments in respect of the Revolving Facility. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.3 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Revolving Facility Agreement (Evolving Systems Inc)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Term Notes, or consent to any departure by the Credit Parties Company or any other Loan Party therefrom, shall in any event be effective without the written concurrence of them therefromthe Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which:
(a) reduces or forgives the principal amount of any of the Term Loans;
(b) reduces or increases the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit permitted pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Term Loans are included on the Restatement Date);
(c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders;
(d) postpones the scheduled final maturity date of any of the Term Loans;
(e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Term Loans;
(f) postpones the date on which any interest or any fees are payable;
(g) decreases the interest rate borne by any of the Term Loans (other than any waiver of any increase in the interest rate applicable to any of the Term Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
(h) increases the maximum duration of Interest Periods permitted hereunder;
(i) except as expressly required or permitted by the Guarantee Agreement, release all or substantially all of the Subsidiary Guarantors from their obligations under the Guarantee Agreement; or
(j) changes in any manner the provisions contained in subsection 7.1 or this subsection 9.5; in each case, shall be effective unless the same shall be in only if evidenced by a writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) the Lenders to whom Obligations are owed being directly affected by such amendment, modification, termination, waiver or all Borrowers; providedconsent (the consent of the Requisite Lenders not being required for any such change). In addition, that no amendment, modification, termination or waiver shallof any provision of Section 8 or of any other provision of this Agreement which, unless in writing and signed by Borrower Funds Administrator (its terms, expressly requires the approval or concurrence of the Administrative Agent shall be effective without the written concurrence of the Administrative Agent. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of all Borrowers) that Lender. Any waiver or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action consent shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or effective only in the other Loan Documents, release specific instance and for the specific purpose for which it was given. No notice to or demand on the Company in any Guaranty or release all or a substantial portion of case shall entitle the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, Company to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment further notice or demand in similar or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties theretocircumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 9.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and and, if signed by the Credit Parties. Notwithstanding anything to Company, on the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderCompany.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination termination, or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any Sponsor, or any of them therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders Lenders, Agent and Borrowers (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowerssuch Credit Party); provided, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase or reinstate the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligationthe requirement that any of the foregoing be paid in full in cash; (iii) extend the scheduled due datedate (including the Maturity Date), or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under with respect to any Loan DocumentLoan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or change the definition of "Requisite Lenders" or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion any of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation continuance of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunderAgent); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); and (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party (other than Agent or any Lender) to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and and, provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall in any event be effective effective, unless in writing and signed by Agent, in addition to Lenders required herein above to take such action. Notwithstanding anything contained in this Agreement to the contrary, no waiver or consent with respect to any Default (Bif in connection therewith Revolving Lenders have exercised their right to suspend the making or incurrence of further Revolving Advances) Documentation Agent under or any Loan Document Event of Default shall be effective for purposes of the conditions precedent to the making of Revolving Advances unless the same shall be in writing and signed by Documentation Agentthe Requisite Lenders with respect to the relevant Revolving Lenders and Borrowers.
(b) Each amendment, and (C) L/C Issuer under any Loan Document modification, termination or waiver shall be effective unless only in writing the specific instance and signed by L/C Issuerfor the specific purpose for which it was given. No amendment, in each casemodification, in addition to Lenders termination or waiver shall be required hereinabove for Agent, for the benefit of itself and the benefit of Lenders, to take such action; and provided, further, that no amendment additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Loan Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Corrpro Companies Inc /Oh/)
Amendment and Waivers. This Agreement or any term hereof may be amended, modified or terminated only with the written consent of (ai) Except as otherwise provided hereinthe Company, no (ii) the Majority Investors (including the Series D Preference Supermajority), and (iii) the Ordinary Majority. To the extent that any party seeks a waiver of rights from any other party: (i) the rights hereunder of any Group Company may be waived only with the written consent of the Company, (ii) the Majority Investors may waive any of the rights of the Investors hereunder without obtaining the consent of any other Investors, and (iii) the Ordinary Majority may waive any of the rights of the Founders and Ordinary Shareholder hereunder without obtaining the consent of any other Founders or Ordinary Shareholder. Notwithstanding the foregoing, (i) Sections 9.1 to 9.3 hereof may not be amended, terminated or waived without the prior written consent of the Founders; (ii) the written consent or approval of any Founder or Ordinary Shareholder shall not be required for any amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them therefrom, shall be effective unless the same shall be in writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no if such amendment, modification, termination or waiver shalldoes not apply to, unless or affect the rights and obligations under this Agreement of, the Founders or the Ordinary Shareholder, respectively; (iii) if an amendment or waiver affects any Investor, Founder or Ordinary Shareholder in writing a manner that is different from the effect thereof on all other Investors, Founders or Ordinary Shareholder, as applicable, then the written consent of such Investor, Founder or Ordinary Shareholder, as applicable, shall be required in order for such amendment or waiver to be effective and signed binding with respect to such Investor, Founder or Ordinary Shareholder, as applicable; (iv) any term or condition set forth in this Agreement may be waived by Borrower Funds Administrator (any waiving party with respect to such party and on behalf of all Borrowers) or all Borrowers and each Lender directly affected therebysuch party’s own behalf, do any of without the following: (i) increase the Commitment consent of any individual Lender (which action other party and no notice of any such waiver need be given by the Company to any non-consenting party. No waivers of or exceptions to any term, condition or provision of this Agreement, in any one or more instances, shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due datebe, or reduce the amount due on any scheduled due dateconstrued as, a further or continuing waiver of any installment of principalsuch term, interest condition or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties theretoprovision. Any amendment, modification, termination, waiver or consent amendment effected in accordance with this Section 10.4 12.2 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender party hereto and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lendertheir respective successors and assigns.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination termination, or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or any of them Borrowers therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (or Lenders, Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers; provided, that no amendment, modification, termination termination, or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: following and that the agreement of Borrowers shall not be required for any amendment, modification, termination, or waiver that does any of the following (other than item (vi) below to the extent adverse to Borrowers and unless any of the following would increase any commitment fee owing by Borrowers): (i) increase the Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other ObligationLoan; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest interest, or fees payable under with respect to any Loan DocumentLoan, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders and Equipment Acquisition Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion any of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation continuance of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunderAgent); (vi) amend, modify or waive Section 9.2 or this Section 10.4 10.5 or the definitions of the terms used in Section 9.2 or this Section 10.4 10.5 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 10.5 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party Borrower or any other party (other than Agent or any Lender) to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and and, provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall in any event be effective effective, unless in writing and signed by Agent, in addition to Lenders required herein above to take such action. Notwithstanding anything contained in this Agreement to the contrary, no waiver or consent with respect to any Default (Bif in connection therewith Revolving Lenders have exercised their right to suspend the making or incurrence of further Advances) Documentation Agent under or any Loan Document Event of Default shall be effective for purposes of the conditions precedent to the making of Advances unless the same shall be in writing and signed by Documentation Agentthe Requisite Lenders with respect to the Revolving Lenders and Borrowers.
(b) Each amendment, and (C) L/C Issuer under any Loan Document modification, termination or waiver shall be effective unless only in writing the specific instance and signed by L/C Issuerfor the specific purpose for which it was given. No amendment, in each casemodification, in addition to Lenders termination or waiver shall be required hereinabove for Agent, for the benefit of itself and the benefit of Lenders, to take such action; and provided, further, that no amendment additional Collateral pursuant to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Loan Document.
(c) Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 10.5 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such LenderBorrowers.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
Appears in 1 contract
Samples: Revolving Credit, Term Loan, and Security Agreement (Advanced Nutraceuticals Inc/Tx)
Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination 13.3.1 No amendment or waiver of any provision of this Agreement or any other Loan DocumentDocument (including without limitation any Note), or nor consent to any departure by the Credit Loan Parties or any of them therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Majority Lenders (and the Loan Parties, and then such waiver or Agent at consent shall be effective only in the direction of specific instance and for the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowersspecific purpose for which given; provided, provided that no amendment, modification, termination waiver or waiver shall, unless in writing and signed by Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers and each Lender directly affected thereby, do any of the following: consent shall be effective to:
(i) (a) increase the any Lender’s Revolving Credit Commitment of any individual Lender (which action shall be deemed to directly affect all Lenders)or Term Loan Commitment; (iib) reduce the principal of, rate (or cash rate) of interest on on, or fees payable with due in respect to any Loan amount payable hereunder to any Lender; or other Obligation; (iiic) extend the scheduled due datepostpone any date fixed for any payment of principal of, or reduce interest on, any amounts payable hereunder to any Lender, in each case, without the amount due on any scheduled due date, written consent of any installment each Lender directly affected thereby;
(a) amend the number of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which that shall be required for Lenders, Agent Lenders or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (vb) except as otherwise expressly permitted herein or in the any other Loan DocumentsDocument, release or discharge any Guaranty Person liable for the performance of any obligations of any Loan Party hereunder or release all or a substantial portion under any of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder)Loan Documents; (vic) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change amend the definition of the term “Borrowing Base” Majority Lenders; (d) amend this Section 13.3; (e) amend subsection 4.4.2; or (f) except as otherwise expressly permitted herein or in any component definition thereof (includingother Loan Document, release any substantial portion of the Collateral, in each case, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the written consent of Agent and Documentation Agent); each Lender;
(viiiiii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party definitions or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) provision in a manner that would alter the nature of the secured position of any Derivative Obligation Provider or its entitlement to a pro rata allocation among Lenders of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, assets upon termination or waiver affecting acceleration of Obligations, without the written consent of each Lender and Derivative Obligation Provider directly affected thereby; or
(iv) affect the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, Issuing Bank or Swingline Lender (Bas applicable) Documentation Agent under this Agreement or any other Loan Document shall be effective unless in writing and signed by Documentation Document, without the written consent of such Agent, and Issuing Bank or Swingline Lender (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by as applicable).
13.3.2 Notwithstanding the parties thereto. Any amendment, modification, termination, waiver or consent effected in accordance with foregoing provisions of this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, each Lender and the Credit Parties. Notwithstanding anything to the contrary herein, 13.3:
(i) no Deteriorating Lender or Delinquent Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that to the Commitment of such Lender may not be increased or extended without extent the consent of such Lender.Lender would be required under clause (i) of subsection 13.3.1;
(bii) Notwithstanding anything technical and conforming modifications to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or Documents may be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall made with the consent of any such provider or holder be required (other than in their capacities as Lenders, the Loan Parties and Administrative Agent to the extent applicablenecessary to integrate any Incremental Revolving Credit Commitments in accordance with Section 2.4; and
(iii) for Administrative Agent and the Loan Parties may amend any matter hereunder Loan Document to correct an obvious, immaterial or under any of the other Loan Documentsadministrative error or omission, including as or to effect administrative changes that are not adverse to any matter relating Lender, and such amendment shall become effective without any further consent of any other party to such Loan Document if the Collateral same is not objected to in writing by Majority Lenders within five (5) Business Days following receipt of notice thereof.
13.3.3 If a fee is to be paid by the Loan Parties in connection with any waiver or amendment hereunder, the release agreement evidencing such amendment or waiver may, at the discretion of Collateral or Administrative Agent (but shall not be required to), provide that only Lenders executing such agreement by a specified date may share in such fee (and in such case, such fee shall be divided among the applicable Lenders on a pro rata basis without including the interests of any Credit PartyLenders who have not timely executed such agreement).
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Amendment and Waivers. (a) Except as otherwise provided herein, no No amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Documentof the Term Notes, or consent to any departure by the Credit Parties Holdings or any of them the Subsidiaries therefrom, shall in any event be effective without the written concurrence of the Requisite Lenders; provided that any such amendment, modification, termination, waiver or consent which:
(a) reduces or forgives the principal amount of any of the Term Loans;
(b) reduces or increases the percentage specified in the definition of the “Requisite Lenders” (it being understood that, with the consent of the Requisite Lenders, additional extensions of credit permitted pursuant to this Agreement may be included in the definition of the “Requisite Lenders” on substantially the same basis as the Term Loans are included on the Closing Date);
(c) changes in any manner any provision of this Agreement which, by its terms, expressly requires the approval or concurrence of all the Lenders;
(d) postpones the scheduled final maturity date of any of the Term Loans;
(e) postpones the date or reduces the amount of any scheduled payment (but not prepayment) of principal of any of the Term Loans;
(f) postpones the date on which any interest or any fees are payable;
(g) decreases the interest rate borne by any of the Term Loans (other than any waiver of any increase in the interest rate applicable to any of the Term Loans pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
(h) changes in any manner the provisions contained in subsection 7.1 or this subsection 9.5; in each case, shall be effective unless the same shall be in only if evidenced by a writing and signed by Requisite Lenders (or Agent at the direction of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) the Lenders to whom Obligations are owed being directly affected by such amendment, modification, termination, waiver or all Borrowers; providedconsent (the consent of the Requisite Lenders not being required for any such change). In addition, that no amendment, modification, termination or waiver shallof any provision of Section 8 or of any other provision of this Agreement which, unless in writing and signed by Borrower Funds Administrator (its terms, expressly requires the approval or concurrence of the Administrative Agent shall be effective without the written concurrence of the Administrative Agent. The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of all Borrowers) that Lender. Any waiver or all Borrowers and each Lender directly affected thereby, do any of the following: (i) increase the Commitment of any individual Lender (which action consent shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or effective only in the other Loan Documents, release specific instance and for the specific purpose for which it was given. No notice to or demand on Holdings in any Guaranty or release all or a substantial portion of the Collateral (which action case shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed to directly affect all Lenders); (ix) subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents, entitle Holdings to any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment further notice or demand in similar or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and obligations under any Loan Document; and provided, further, that no amendment, modification, termination or waiver affecting the rights or duties of (A) Agent under any Loan Document shall be effective unless in writing and signed by Agent, (B) Documentation Agent under any Loan Document shall be effective unless in writing and signed by Documentation Agent, and (C) L/C Issuer under any Loan Document shall be effective unless in writing and signed by L/C Issuer, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties theretocircumstances. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 subsection 9.5 shall be binding upon Agent, Documentation Agent, L/C Issuereach Lender at the time outstanding, each future Lender and the Credit Parties. Notwithstanding anything to the contrary hereinand, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendmentif signed by Holdings, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lenderon Holdings.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Credit Party.
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Amendment and Waivers. (a) Except as otherwise provided herein, no amendment, modification, termination or No waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by the Credit Parties or Borrower therefrom shall in any of them therefrom, shall event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of an Advance shall not be construed as a waiver of any Default or Event of Default, regardless of whether Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time. Neither this Agreement nor any provision hereof may be waived, amended or modified (except pursuant to an agreement or agreements in writing entered into by Borrower and signed the Agent), except for an amendment to increase the Maximum Revolving Loan Amount in accordance with Section 2.14 hereof, such amendment to require the consent of Agent and such Lenders so increasing their Revolving Loan Commitment, or by Requisite Lenders (or Borrower and Agent at with the direction consent of the Requisite Lenders) and Borrower Funds Administrator (on behalf of all Borrowers) or all Borrowers, without taking into account the Loans held by Non-Funding Lenders; provided, provided that no amendmentsuch agreement shall: increase the Revolving Loan Commitment or Term Loan Commitment of any Lender without the written consent of such Lender; reduce the principal amount of any Loan or reduce the rate of interest thereon (other than a waiver of post-default interest), modificationor reduce any fees payable hereunder, termination without the written consent of each Lender directly affected thereby; postpone the scheduled date of payment of the principal amount of any Loan, or waiver shallany interest thereon, unless in writing and signed by Borrower Funds Administrator (on behalf or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of all Borrowers) expiration of any Revolving Loan Commitment or all Borrowers and Term Loan Commitment, without the written consent of each Lender directly affected thereby, do change any of the following: (i) increase the Commitment provisions of any individual Lender (which action shall be deemed to directly affect all Lenders); (ii) reduce the principal of, rate (or cash rate) of interest on or fees payable with respect to any Loan or other Obligation; (iii) extend the scheduled due date, or reduce the amount due on any scheduled due date, of any installment of principal, interest or fees payable under any Loan Document, or waive, forgive, extend, defer or postpone the payment thereof; (iv) change the percentage of the Commitments, of the aggregate unpaid principal amount of the Loans, or of the Lenders which shall be required for Lenders, Agent or any of them to take any action hereunder (which action shall be deemed to directly affect all Lenders) or alter, as between or among the Revolving Lenders and Term Lenders, the amount payable to each hereunder; (v) except as otherwise permitted herein or in the other Loan Documents, release any Guaranty or release all or a substantial portion of the Collateral (which action shall be deemed to directly affect all Lenders) (provided, that consent to such release shall not be required if such release is made after the occurrence and during the continuation of an Event of Default in connection with the sale or disposition of the Collateral that is consented to by Agent and Documentation Agent or otherwise expressly permitted hereunder); (vi) amend, modify or waive Section 9.2 or this Section 10.4 or the definitions of the terms used in Section 9.2 or this Section 10.4 insofar as the definitions affect the substance of Section 9.2 or this Section 10.4 (which action shall be deemed to directly affect all Lenders); (vii) change the definition of the term “Borrowing Base” or any component definition thereof (including, without limitation, “Eligible Inventory” and “Eligible Credit Card Receivables”) if as a result thereof the amounts available to be borrowed by Borrowers would be increased (which action shall be deemed to directly affect all Lenders) by an amount in excess of $1,500,000, provided that the foregoing shall not limit the discretion of Agent to change, establish or eliminate any Reserves (other than Rent Reserves established as a result of the failure of any Credit Party to deliver a Landlord Waiver and Consent, in which case, any such change or elimination of such Rent Reserve shall require only the consent of Agent and Documentation Agent); (viii) change the definition of the term “Requisite Lenders” or “Pro Rata Share” (which action shall be deemed any other provision hereof specifying the number or percentage of Lenders required to directly affect all Lenders); (ix) subordinate the Obligations waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the Liens granted hereunder or under the other Loan Documents, to written consent of each Lender; release any other Indebtedness or Lien, as the case may be; and/or (x) consent to the assignment or other transfer by any Credit Party or any other party to any Loan Documents (other than Agent, Documentation Agent, L/C Issuer or any Lender) of any of their rights and Guarantor from its obligations under any Loan Documenta Guaranty without the written consent of each Lender; and providedor except as otherwise specifically provided in this Agreement, furtherrelease all or substantially all of the Collateral, without the written consent of each Lender; provided further that no amendmentsuch agreement shall amend, modification, termination modify or waiver affecting otherwise affect the rights or duties of (A) Agent under hereunder without the prior written consent of Agent. Notwithstanding the foregoing, this Agreement and any other Loan Document shall may be effective unless amended (or amended and restated) with the written consent of the Requisite Lenders, Agent and Borrower (x) to add one or more credit facilities to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in writing respect thereof to share ratably in the benefits of this Agreement and signed by Agent, (B) Documentation Agent under any the other Loan Document shall be effective unless Documents with the Loan and the accrued interest and fees in writing and signed by Documentation Agent, respect thereof and (Cy) L/C Issuer under to include appropriately the Lenders holding such credit facilities in any Loan Document shall be effective unless in writing determination of the Requisite Lenders and signed by L/C IssuerLenders. If, in each case, in addition to Lenders required hereinabove to take such action; and provided, further, that no amendment to connection with any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Any proposed amendment, modification, termination, waiver or consent effected in accordance with this Section 10.4 shall be binding upon Agent, Documentation Agent, L/C Issuer, requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then Agent or Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to Agent shall agree, as of such date, to purchase for cash the principal balance of the Loans due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Credit PartiesNon-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (a) of Section 12.2, and (ii) Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by Borrower hereunder to and including the date of termination, including without limitation any indemnity payments due to such Non-Consenting Lender hereunder for which the amount is known. Notwithstanding anything to the contrary hereinherein Agent may, no Deteriorating Lender or Delinquent Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without with the consent of such Lender.
(b) Notwithstanding anything to the contrary in Borrower only, amend, modify or supplement this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan DocumentsDocuments to cure any ambiguity, including as to any matter relating to the Collateral omission, mistake, defect or the release of Collateral or any Credit Partyinconsistency.
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Samples: Loan and Security Agreement (Katapult Holdings, Inc.)
