Amendments, Waivers, Etc. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 4 contracts
Samples: Revolving Credit Agreement (Boardwalk Pipeline Partners, LP), Revolving Credit Agreement, Revolving Credit Agreement (Boardwalk Pipeline Partners, LP)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Fee Letter) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreement(A) cure any ambiguity, as determined by the Administrative Agent; fifthomission, if so determined defect or inconsistency, by the Administrative Agent and the Parent Borrower or (B) grant a new Lien for the benefit of the Secured Parties or extend an existing Lien over additional property, by the Collateral Agent and the Borrower and (2) in the case of any other amendment, waiver or consent by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, that no amendment, consent or waiver described in clause (2) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other Person the signature of which is otherwise required pursuant to any Loan Document, be held effective to do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender (excluding mandatory prepayments), (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) extend, waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion Commitment or the stated expiration date of any Letter of Credit Obligations with respect beyond the Revolving Credit Termination Date; provided, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.8, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.12;
(Conditions Precedent to each Extension v) waive or amend any provision of CreditSection 2.12(c) were satisfied (Application of Payments during an Event of Default) or waivedSection 2.12(d) (Application of Payments Generally);
(vi) except as provided in Section 10.10, such payment shall be applied solely to pay release all or substantially all of the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment Collateral or any Guarantor from its guaranty of any Loans of, Obligation of the Borrower;
(vii) reduce or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters increase the proportion of Credit and Swingline Loans are held by Lenders required for the Lenders pro rata in accordance with (or any subset thereof) to take any action hereunder or change the definition of the terms “Required Lenders”, “Required Revolving Credit Commitments without giving effect to clause (i) above. Any paymentsLenders”, prepayments “Required Term Loan Lenders”, “Pro Rata Share” or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.“Pro Rata Outstandings”;
Appears in 4 contracts
Samples: Credit Agreement (Francesca's Holdings CORP), Credit Agreement (Francesca's Holdings CORP), Credit Agreement (Francesca's Holdings CORP)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement or any other Loan Document nor consent to any departure by any Loan Party therefrom (other than any amendment or waiver of any provision of any Collateral Document (as defined in the U.S. Facility) or any consent to any departure by any U.S. Loan Party therefrom, interestwhich amendment, fees waiver or other amounts received consent shall be governed by the U.S. Facility) shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent, signed by the Requisite Lenders (or by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant with the consent of the Requisite Lenders) and the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no amendment, waiver or consent with respect to the provisions contained in Section 10.6 (Right of Set-off2.13(h) shall be applied at effective, unless in writing and signed by each Agent or Lender required under the terms of such time section to have consented thereto;
(ii) no amendment, waiver or times as may consent under this Agreement shall be determined by the Administrative Agent as follows: first, effective to add any category of Collateral to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender Borrowing Base unless in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred writing and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined signed by the Administrative Agent and the Parent BorrowerSuper-Majority Lenders;
(iii) no amendment, waiver or consent shall be effective to be held increase any Advance Rate above the applicable maximum set forth in a deposit account the definition thereof, unless in writing and released pro rata in order to signed by each Lender;
(xiv) satisfy such Defaulting Lender’s potential future funding obligations no amendment, waiver or consent with respect to Loans under this Agreement the terms and conditions of the Collateral Documents shall be effective, unless in writing and signed by the Collateral Agent;
(yv) Cash Collateralize except to the extent any such Defaulting Lender’s Ratable Portion amendment, waiver or consent would result in an increase of Letter of the aggregate Revolving Credit Obligations Commitments, no amendment, waiver or consent shall be effective with respect to future Letters the terms and provisions under Article II and any other provisions related solely to Revolving Credit Borrowings (including any conditions to such Borrowings and increases to interest rates and fees) and payment procedures under the Revolving Credit Facility, unless in writing and signed by the Administrative Agent and the Requisite Lenders;
(vi) [Intentionally Omitted]; and
(vii) no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby, in addition to the Requisite Lenders, do any of Credit issued under this Agreement; sixththe following:
(A) waive any of the conditions specified in Section 3.1 (subject to Section 3.3) or Section 3.2 except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders;
(B) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(C) extend the scheduled final maturity of any Loan owing to such Lender, or waive, reduce, or postpone any scheduled date fixed for, the payment of any amounts principal, interest or fees owing to such Lender (it being understood that Section 2.9 does not provide for scheduled dates fixed for payment) or for the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result reduction of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if Commitment;
(xD) such payment is a payment of reduce the principal amount of any Loans Loan or Reimbursement Obligation (other than by the payment or prepayment thereof) owing to such Lender;
(E) reduce the rate of interest on any Loan or Reimbursement Obligations owing to such Lender or any fee payable hereunder to such Lender or waive any such obligation (other than with respect to default interest);
(F) change the aggregate Ratable Portions of the Lenders which shall be required for the Lenders or any of them to take any action hereunder;
(G) release all or substantially all of the Collateral or release any Guarantor from its obligations under the Guaranty or the U.S. Loan Party Canadian Facility Guaranty except as provided in Section 10.7 or as expressly provided under the Guaranty or the U.S. Loan Party Canadian Facility Guaranty; or
(H) amend Section 11.7 or this Section 11.1 or the definition of the terms “Requisite Lenders”, “Ratable Portion” or “Super-Majority Lenders”; and provided, further, that:
(i) any modification of the application of payments to the Loans pursuant to Section 2.9 or the reduction of the Revolving Credit Commitments pursuant to Section 2.5 shall require the consent of the Requisite Lenders;
(ii) no amendment, waiver or consent shall, unless in writing and signed by any Special Purpose Vehicle that has been granted an option pursuant to Section 11.2(f), affect the grant or nature of such option or the right or duties of such Special Purpose Vehicle hereunder;
(iii) no amendment, waiver or consent shall, unless in writing and signed by the applicable Facility Agent in addition to the Lenders required above to take such action, affect the rights or duties of such Facility Agent under this Agreement or any of the other Loan Documents; and
(iv) no amendment, waiver or consent shall, unless in writing and signed by the Swing Loan Lender in addition to the Lenders required above to take such action, affect the rights or duties of the Swing Loan Lender under this Agreement or any of the other Loan Documents; and provided, further, that (i) the Administrative Agent may, with the consent of the Borrower, amend, modify or supplement this Agreement or any other Loan Document to cure any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or any Issuer, (ii) Schedule I (Commitments) may be amended from time to time by the Administrative Agent alone to reflect assignments of Commitments in accordance herewith and any increase in the Commitment of any Lender or any new Commitment of any Lender made in accordance herewith (including, without limitation, in accordance with clause (B) above) (with the Administrative Agent agreeing to remit to the Borrower a copy of any such amended Schedule I; provided, however, that the failure of the Administrative Agent to so remit such copy shall not affect any such assignment or any such increase in or new Commitment and shall not create any liability against the Administrative Agent), (iii) any Loan Documents may be amended from time to time by the Administrative Agent, the Collateral Agent and the relevant Loan Party alone (i.e. without any Lender consent or approval) to add a Subsidiary of Group as a Subsidiary Guarantor or as a grantor under a Collateral Document or to subject to the Lien of any applicable Loan Document assets or property not then subject to the Lien of such Loan Document and (iv) in the event that the U.S. Facility is amended, or a waiver is granted thereunder, and such amendment or waiver concerns one or more of the provisions contained in the U.S. Facility analogous to Sections 6.1, 6.11, 6.13, 7.1, 7.2, 7.3, 7.13, 7.14, or 8.8 - 8.19 hereof or any of the definitions contained therein, then such Section(s) of this Agreement or definitions (but only as to such Sections), as applicable, shall be amended or waived to conform to such amendment or waiver of the U.S. Facility, mutatis mutandis, (but only to the extent applicable to a Warnaco Entity other than a Canadian Loan Party) without any vote required from the Lenders or any Agent (and each Lender hereby authorizes the Administrative Agent to execute any and all documents to evidence any such amendment or waiver under this Agreement without the consent of such Lender).
(b) The Administrative Agent may, but shall have no obligation to, with the written concurrence of any applicable Lender, execute amendments, modifications, waivers or consents on behalf of such 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 Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all affected Lenders or of the Super-Majority Lenders, if the consent of Requisite Lenders is obtained, but the consent of other applicable Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 11.1 being referred to as a “Non-Consenting Lender”), then, as long as the Lender that is acting as the Administrative Agent is not a Non-Consenting Lender and there is no continuing Event of Default, at the Borrower’s request (and at the Borrower’s sole cost and expense), the Administrative Agent or an Eligible Assignee that is acceptable to the Administrative Agent shall have the right with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent’s request, sell and assign to the Lender that is acting as the Administrative Agent or such Eligible Assignee all of the Revolving Credit Commitments and Revolving Credit Outstandings of such Non-Consenting Lender for an amount equal to the principal balance of all Loans held by the Non-Consenting Lender and all accrued and unpaid interest and fees with respect thereto through the date of which sale; provided, however, that such Defaulting Lender has purchase and sale shall be recorded in the Register maintained by the Administrative Agent and not fully funded its appropriate share, be effective until (x) the Administrative Agent shall have received from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative Agent and the Borrower whereby such Eligible Assignee shall agree to be bound by the terms hereof and (y) such Non-Consenting Lender shall have received payments of all Loans were made or held by it and all accrued and unpaid interest and fees with respect thereto through the related Letters date of Credit were issued at the sale. Each Lender agrees that, if it becomes a time when Non-Consenting Lender, it shall execute and deliver to the conditions set forth in Section 4.2 Administrative Agent an Assignment and Acceptance to evidence such sale and purchase; provided, however, that the failure of any Non-Consenting Lender to execute an Assignment and Acceptance shall not render such sale and purchase (Conditions Precedent to each Extension of Creditand the corresponding assignment) were satisfied or waived, invalid and such payment assignment shall be applied solely to pay recorded in the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoRegister.
Appears in 3 contracts
Samples: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (whether voluntary provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or mandatory, at maturity, pursuant reduce or forgive any fees hereunder (other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Agent, the Arranger or the Issuing Lender pursuant to Section 10.6 for its own account), (Right of Set-offii) shall be applied at such time extend the final scheduled maturity date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Revolving Credit Commitments, extend the time of payment of any Reimbursement Obligation or any interest thereon, extend the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date, or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunder; secondAgent, to the payment on a pro rata basis Arranger or the Issuing Lender for its own account), or (iii) increase any Revolving Credit Commitment of any amounts owing by such Defaulting Lender to over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any Issuer condition precedent set forth in Section 4.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory reduction in the Revolving Credit Commitments, if agreed to by the Required Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase);
(b) unless agreed to by all of the Lenders, (i) release any Guarantor from its obligations under the Guaranty (other than (A) as may be otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the Capital Stock of such Guarantor in a transaction expressly permitted under or pursuant to this Agreement), (ii) reduce the percentage of the aggregate Revolving Credit Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”), (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, or (iv) change or waive any provision of Section 2.15, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders, or this Section 11.5; and
(c) unless agreed to by the Issuing Lender, the Swingline Lender or the Administrative Agent in addition to the funding Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of any Loan in respect of which such Defaulting the Issuing Lender, the Swingline Lender has failed to fund its portion thereof as required by this Agreement, as determined by or the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borroweras applicable, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans hereunder or under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount other Credit Documents. Notwithstanding the fact that the consent of any Loans or Reimbursement Obligations all Lenders is required in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions certain circumstances as set forth in Section 4.2 (Conditions Precedent above, each Lender is entitled to each Extension of Credit) were satisfied or waived, vote as such payment shall be applied solely to pay Lender sees fit on any bankruptcy reorganization plan that affects the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting LenderLoans, and each Lender irrevocably consents heretoacknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein.
Appears in 3 contracts
Samples: Credit Agreement (Jackson Hewitt Tax Service Inc), Credit Agreement (Jackson Hewitt Tax Service Inc), Credit Agreement (Jackson Hewitt Tax Service Inc)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement or any other Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent, interest, fees signed by the Requisite Lenders (or other amounts received by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant with the consent of the Requisite Lenders) and the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that:
(i) no amendment, waiver or consent with respect to the provisions contained in Section 10.6 (Right of Set-off2.13(h) shall be applied at effective, unless in writing and signed by each Agent or Lender (and, in the case of clause tenth of such time Section, the administrative agent under the Canadian Facility) required under the terms of such section to have consented thereto;
(ii) no amendment, waiver or times as may consent under this Agreement shall be determined by the Administrative Agent as follows: first, effective to add any category of Collateral to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender Borrowing Base unless in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred writing and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined signed by the Administrative Agent and the Parent BorrowerSuper-Majority Lenders;
(iii) no amendment, waiver or consent shall be effective to be held increase any Advance Rate above the applicable maximum set forth in a deposit account the definition thereof, unless in writing and released pro rata in order to signed by each Lender;
(xiv) satisfy such Defaulting Lender’s potential future funding obligations no amendment, waiver or consent with respect to Loans under this Agreement the terms and conditions of the Collateral Documents shall be effective, unless in writing and signed by the Collateral Agent;
(yv) Cash Collateralize except to the extent any such Defaulting Lender’s Ratable Portion amendment, waiver or consent would result in an increase of Letter of the aggregate Revolving Credit Obligations Commitments (it being understood that any Facility Increase does not constitute such an increase in Revolving Credit Commitments), no amendment, waiver or consent shall be effective with respect to future Letters of the terms and provisions under Article II and any other provisions related solely to Revolving Credit issued under this Agreement; sixth, Borrowings (including any conditions to the payment of any amounts owing to the Non-Defaulting Lenders such Borrowings or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations Facility Increase and increases to interest rates and fees) and payment procedures under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause Facility, unless in writing and signed by the Administrative Agent and the Requisite Lenders;
(ivi) above. Any payments[Intentionally Omitted]; and
(vii) no amendment, prepayments waiver or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed consent shall, unless in writing and signed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.affected thereby, in addition to the Requisite Lenders, do any of the following:
(A) waive any of the conditions specified in Section 3.1 (subject to Section 3.3)
Appears in 3 contracts
Samples: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (whether voluntary provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or mandatory, at maturity, pursuant reduce or forgive any fees hereunder (other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant or the Arrangers for their own accounts) (it being understood that an amendment to Section 10.6 the definition of Total Leverage Ratio (Right of Set-offor any defined terms used therein) shall be applied at such time not constitute a reduction of any interest rate or times as may be determined by fees hereunder), (ii) extend the Administrative Agent as follows: first, to final scheduled maturity date or any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory termination of any Commitments), or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunder; secondor the Arrangers for their own accounts), to or extend the time of payment on a pro rata basis of any amounts owing by Reimbursement Obligation or any interest thereon, or extend the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date, or (iii) increase any Commitment of any such Defaulting Lender to over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any Issuer condition precedent set forth in Section 3.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory termination in the Commitments, if agreed to by the Required Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase);
(b) unless agreed to by all of the funding Lenders, (i) release any Guarantor from its obligations under the Guaranty (other than (A) as may be otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the Capital Stock of such Guarantor in a transaction expressly permitted under or pursuant to this Agreement), (ii) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”), (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, or (iv) change or waive any provision of Section 2.12(e), Section 2.14, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Loan Lenders, or this Section 10.5;
(c) change any provisions of any Credit Document in a manner that by its terms adversely affects the rights in respect of which payments due to Lenders holding Loans of any Class differently than those of Lenders holding Loans of any other Class without the written consent of the Required Lenders of each adversely affected Class;
(d) unless agreed to by the Swingline Lender or the Administrative Agent in addition to the Lenders required as provided hereinabove to take such Defaulting action, affect the respective rights or obligations of the Swingline Lender has failed to fund its portion thereof as required by this Agreement, as determined by or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents; fifthand
(e) unless agreed to by each Hedge Party that would be adversely affected thereby in its capacity as such relative to the Lenders, if so determined by (i) amend the Administrative Agent and definition of “Guaranteed Obligations” in the Parent BorrowerGuaranty (or any similar defined term in any other Credit Document benefiting such Hedge Party), to (ii) amend the definition of “Guaranteed Parties” in the Guaranty (or any similar defined term in any other Credit Document benefiting such Hedge Party), (iii) amend any provision regarding priority of payments in this Agreement or any other Credit Document, or (iv) release any Guarantor from its obligations under the Guaranty (other than (A) as may be held otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the Capital Stock of such Guarantor in a deposit account transaction expressly permitted under or pursuant to this Agreement); and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans provided further that any waiver, amendment or modification of this Agreement that by its terms adversely affects the rights or duties under this Agreement and of the Dollar Lenders (ybut not the Multicurrency Lenders) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result Multicurrency Lenders (but not the Dollar Lenders) may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite percentage in interest of any judgment the affected Class of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this AgreementLenders; and eighth, to such Defaulting Lender provided further that the Fee Letters may only be amended or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate sharemodified, and (y) such Loans were made or any rights thereunder waived, in a writing signed by the related Letters parties thereto. Notwithstanding the fact that the consent of Credit were issued at a time when the conditions all Lenders is required in certain circumstances as set forth in Section 4.2 (Conditions Precedent above, each Lender is entitled to each Extension of Credit) were satisfied or waived, vote as such payment shall be applied solely to pay Lender sees fit on any bankruptcy reorganization plan that affects the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting LenderLoans, and each Lender irrevocably consents heretoacknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein. Notwithstanding anything to the contrary herein, no Defaulting 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.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Intercontinentalexchange Inc), Credit Agreement (Intercontinentalexchange Inc)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to in writing by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (whether voluntary provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or mandatory, at maturity, pursuant reduce or forgive any fees hereunder (other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Agent, the Arranger or the Issuing Lender pursuant for its own account) (it being understood that an amendment to Section 10.6 the definition of Total Net Leverage Ratio (Right of Set-offor any defined terms used therein) shall be applied at such time not constitute a reduction of any interest rate or times as may be determined by fees hereunder), (ii) extend the Administrative Agent as follows: first, to final scheduled maturity date or any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments, but excluding any mandatory prepayment of the Loans pursuant to Sections 2.6(c) and Section 2.6(d) or reduction or termination of the Commitments in connection therewith), extend the time of payment of any Reimbursement Obligation or any interest thereon, extend the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date, or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunder; secondor the Issuing Lender for its own account), to the payment on a pro rata basis or (iii) increase any Commitment of any amounts owing by such Defaulting Lender to over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any Issuer condition precedent set forth in Section 4.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory reduction in the Commitments, if agreed to by the Required Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase), or (iv) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreementtake or approve, as determined by the Administrative Agent; fifth, if so determined by or direct the Administrative Agent and to take, any action hereunder or under any other Credit Document (including as set forth in the Parent Borrowerdefinition of “Required Lenders”);
(b) unless agreed to in writing by all of the Lenders, to (i) release all or substantially all of the Collateral (except as may be held otherwise specifically provided in this Agreement or in any other Credit Document), (ii) release any Material Subsidiary that is a Guarantor from its obligations under any guaranty agreement (other than (A) as may be otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the Capital Stock of such Guarantor in a deposit account and released transaction expressly permitted under or pursuant to this Agreement), (iii) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”), (iv) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, or (v) change or waive any provision of Section 2.15, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders, or this Section 11.5;
(c) unless agreed to in order writing by all of the Lenders, reduce the percentage set forth in the definition of “Required Lenders” (it being understood that no consent of any other Lender or the Administrative Agent is required);
(d) unless agreed to in writing by the Required Lenders, (xi) satisfy except for any such Defaulting Lender’s potential future funding obligations with respect changes to Loans under this Agreement and (ywhich Section 11.5(a) Cash Collateralize such Defaulting Lender’s Ratable Portion applies, change any provision of Article 2.20 or any terms or provisions of any Letter of Credit Obligations with respect or any supporting documentation relating thereto (it being understood that no consent of any other Lender or the Administrative Agent is required), or (ii) amend, modify or waive any condition precedent to future Letters any Borrowing of Revolving Loans or issuance of a Letter of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent including in connection with any waiver of an existing Default or Event of Default);
(e) unless agreed to each Extension of Credit) were satisfied in writing by the Issuing Lender, the Swingline Lender or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied Administrative Agent in addition to the payment Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the Issuing Lender, the Swingline Lender or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents; and Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until may not be increased or extended without the consent of such time as Lender and (y) any waiver, amendment or modification requiring the consent of all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held Lenders or each affected Lender that by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a its terms affects any Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) more adversely than other affected Lenders shall be deemed paid to and redirected by require the consent of such Defaulting Lender. Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender irrevocably consents heretoacknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein.
Appears in 3 contracts
Samples: Credit Agreement and Pledge and Security Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.)
Amendments, Waivers, Etc. Any payment (a) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturitythis Agreement, pursuant to Article 8 (Events of Default) an agreement or otherwise) or received agreements in writing entered into by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by Borrower, the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held Required Lenders or (ii) in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment case of any amounts owing other Loan Document, pursuant to an agreement or agreements in writing entered into by the Non-Defaulting Lenders Agent and the Credit Party or Credit Parties that are parties thereto, with the Issuers as a result consent of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdictionRequired Lenders; provided that if no such agreement shall (xi) increase the Term Loan Commitment of any Lender without the written consent of such payment is Lender, (ii) reduce or forgive the principal amount of any Term Loan or reduce the rate of interest thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender directly affected thereby (provided, that any waiver of Default Rate interest shall not be considered a reduction of interest), (iii) postpone any scheduled date of payment of the principal amount of any Loans Term Loan or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any date for the payment of any Loans interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or Reimbursement Obligations owed toexcuse any such payment, such Defaulting or postpone the scheduled date of expiration of any Term Loan Commitment, without the written consent of each Lender until such time directly affected thereby, (iv) change any provision contained in Sections 2.2(c), 2.5, 2.8, 2.9, 10.9(b) or 10.10 hereof or this Section 10.11 or Section 10.16 hereof, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender, (vi) release the Borrower or any Guarantor from its obligation under its Guaranty (except as all Loans otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender, or (vii) except as otherwise expressly provided herein, including without limitation, in Section 10.11(b) or in any Security Document, release any of the Collateral without the written consent of each Lender. Anything in this Section 10.11 to the contrary, no amendment, waiver or consent shall be made with respect to Section 9 without the written consent of the Agent.
(b) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and funded and unfunded participations in Letters of Credit and Swingline Loans are held its sole discretion, to release any Liens granted to the Collateral Agent by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause Parties on any Collateral (i) aboveupon the termination of the all Term Loan Commitments, and payment and satisfaction in full in cash of all Term Loans and other Obligations, (ii) constituting Property being sold or disposed of if the Credit Party disposing of such Property certifies to the Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting Property leased to a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Collateral Agent and the Lenders pursuant to Article 8. Except as provided in the preceding sentence or in Section 7.4(e)(5), the Collateral Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided that, the Collateral Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $1,000,000 during any calendar year without the prior written authorization of the Required Lenders. Any paymentssuch release shall not in any manner discharge, prepayments affect, or impair the Obligations or any Liens (other amounts paid or payable to a Defaulting Lender that are applied than those expressly being released) upon (or heldobligations of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoconstitute part of the Collateral.
Appears in 3 contracts
Samples: Term Loan Agreement (Animal Health International, Inc.), Term Loan Agreement (Animal Health International, Inc.), Term Loan Agreement (Animal Health International, Inc.)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan, any Note or any Reimbursement Obligation (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result payment of any judgment Reimbursement Obligation or principal on any Revolving Credit Loan or any Note without the consent of a court of competent jurisdiction obtained by such Borrower against such Defaulting each Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighthdirectly affected thereby, to such Defaulting Lender (vi) decrease or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Revolving Credit Loan, any Note or any Reimbursement Obligations in respect Obligation without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, (xi) change the sharing provisions among Lenders without the consent of each Lender, or (xii) extend the expiration date of a Letter of Credit beyond the Commitment Termination Date without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent, the Issuer or the related Swing Line Lender under any Loan Document without the written consent of the Administrative Agent, the Issuer or the Swing Line Lender, as the case may be, (B) change the Letter of Credit Commitment, change the amount or the time of payment of the Letter of Credit Commissions, or change any other term or provision which relates to the Letter of Credit Commitment or the Letters of Credit were issued at a without the written consent of the Issuer, (C) change the Swing Line Commitment, change the amount or the time when of payment of the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Swing Line Loans or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied interest thereon or change any other term or provision which relates to the Swing Line Commitment or the Swing Line Loans without the written consent of the Swing Line Lender or (D) change the amount or the time of payment of any Competitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans ofand the Notes and the Reimbursement Obligations. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 3 contracts
Samples: 364 Day Credit Agreement (CVS/Caremark Corp), Credit Agreement (CVS/Caremark Corp), Credit Agreement (CVS Corp)
Amendments, Waivers, Etc. Any payment consent or approval required or permitted by this Credit Agreement to be given by all of principalthe Banks may be given, interestand any term of this Credit Agreement, fees the other Loan Documents or any other amounts received instrument related hereto or mentioned herein may be amended, and the performance or observance by the Administrative Agent for Borrower or any of the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment other Transaction Parties of any amounts owing by terms of this Credit Agreement, the other Loan Documents or such Defaulting Lender to other instrument or the Administrative Agent hereunder; second, to the payment on a pro rata basis continuance of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred may be waived (either generally or in a particular instance and is continuingeither retroactively or prospectively) with, but only with, the written consent of the Borrower and the written consent of the Majority Banks. Notwithstanding the foregoing, the rate of interest on the Notes (other than interest accruing pursuant to ss.5.10.2 following the effective date of any waiver by the Majority Banks of the Default or Event oF Default relating thereto), to the funding term of any Loan in respect the Notes, the amount of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreementthe Commitments of the Banks, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion amount of commitment fee or Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixthFees hereunder may not be changed, to and no scheduled date for the payment of principal, interest or fees may be postponed or extended without the written consent of the Borrower and the written consent of each Bank affected thereby; the definition of Majority Banks and the terms of this Section 26 may not be amended and no collateral or guaranty may be released without the written consent of all of the Banks; and the amount of the Agent's Fee or any amounts owing Letter of Credit Fees payable for the Agent's account and ss.15 may not be amended without the written consent of the Agent. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the Non-Defaulting Lenders part of the Agent or the Issuers any Bank in exercising any right shall operate as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender waiver thereof or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default otherwise be prejudicial thereto. No notice to or Event of Default has occurred and is continuing, demand upon the Borrower shall entitle the Borrower to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender other or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans further notice or Reimbursement Obligations demand in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments similar or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretocircumstances.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Hadco Corp), Revolving Credit Agreement (Hadco Acquisition Corp Ii), Revolving Credit Agreement (Hadco Acquisition Corp Ii)
Amendments, Waivers, Etc. Any payment of principalNo amendment, interestmodification, fees waiver or other amounts received discharge or termination of, or consent to any departure by the Administrative Borrower from, any provision of this Agreement or any other Credit Document, shall be effective unless in a writing signed by the Required Lenders (or by the Agent at the direction or with the consent of the Required Lenders and the Borrower), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Agent for its appropriate shareown account), and or (yii) such Loans were made extend the Revolving Credit Maturity Date, the Swingline Maturity Date or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any other date fixed for the payment of any Loans ofprincipal of or interest on any Revolving Loan or Swingline Loan (other than additional interest payable under Section 2.8(b) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Agent for its own account) or any other Obligations;
(b) unless agreed to by all of the Lenders, (i) increase or extend any Revolving Credit Commitment or Swingline Commitment of any Lender (it being understood that a waiver of any Event of Default, if agreed to by the requisite Lenders hereunder, shall not constitute such an increase or extension), (ii) change the percentage of the Total Revolving Credit Commitments, the Swingline Commitment or of the aggregate unpaid principal amount of the Loans, or Reimbursement Obligations owed tothe number or percentage of Lenders, such Defaulting Lender until such time that shall be required for the Lenders or any of them to take or approve, or direct the Agent to take or approve, any action hereunder (including as set forth in the definition of "Required Lenders"), (iii) except as may be otherwise specifically provided in this Agreement or in any other Credit Document, release all Loans and funded and unfunded participations in Letters or substantially all of the Collateral, or release any material Subsidiary from the Subsidiary Guaranty, or (iv) change any provision of SECTION 2.15 or this SECTION 11.6;
(c) unless agreed to by (i) all of the Lenders, extend the expiry date of any Letter of Credit beyond the seventh day prior to the Revolving Credit Maturity Date or reduce or forgive any Reimbursement Obligation, or (ii) Lenders having more than sixty-six and Swingline Loans are held by the Lenders pro rata in accordance with two-thirds percent (66-2/3%) of the Revolving Credit Commitments without giving effect (or, if the Revolving Credit Commitments have been terminated, Lenders holding more than sixty-six and two-thirds percent (66-2/3%) of the aggregate outstanding principal amount of the Revolving Loans and Letter of Credit Exposure), change any other provision of ARTICLE III; and
(d) unless agreed to clause (i) above. Any paymentsby the Issuing Lender, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting the Swingline Lender or the Agent in addition to post cash collateral pursuant the Lenders required as provided hereinabove to this Section 2.21(a)(ii) shall be deemed paid to and redirected by take such Defaulting action, affect the respective rights or obligations of the Issuing Lender, and each the Swingline Lender irrevocably consents heretoor the Agent, as applicable, hereunder or under any of the other Credit Documents.
Appears in 2 contracts
Samples: Credit Agreement (Eclipsys Corp), Credit Agreement (Eclipsys Corp)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement or any other Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent, interest, fees signed by the Requisite Lenders (or other amounts received by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and, in the case of the Administrative Agent's or any Lender's obligations to the Borrowers, signed by the Borrowers and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent with the consent of the Requisite Lenders) and the Borrowers, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (or the Administrative Agent with the consent thereof) and, if applicable, the Borrowers, do any of the following: 116
(i) waive any condition specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit), except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and subject to the provisions of Section 3.3 (Determinations of Initial Borrowing Conditions);
(ii) increase any Commitment of such Lender or subject such Lender to any additional obligation;
(iii) extend the scheduled final maturity of any Loan or Reimbursement Obligation owing to such Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal of any such Loan or Reimbursement Obligation (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the reduction of such Lender's Commitment;
(iv) reduce, or release any Borrower from its obligations to repay, the principal amount of any Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest (other than any additional Applicable Margin required under Section 7.15 (Post-Closing Covenants)) on any Loan or Reimbursement Obligation outstanding and owing to such Lender or any fee payable hereunder to such Lender or postpone any scheduled date fixed for payment of such interest or fees or waive any such payment;
(vi) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(vii) release all or substantially all of the Collateral except as provided in Section 10.8(b) (Concerning the Collateral and the Collateral Documents) or release any Borrower from its payment obligation to such Lender under this Agreement or the Notes owing to such Lender (if any) or release any Guarantor from its obligations under any Guaranty except in connection with the sale or other disposition of a Defaulting Lender Subsidiary Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement); or
(viii) amend Section 10.8(b) (Concerning the Collateral and the Collateral Documents), Section 11.7 (Sharing of Payments, Etc.), this Section 11.1 or either definition of the terms "Requisite Lenders" or "Ratable Portion"; and provided, further, that (A) any modification of the application of payments to the Term Loans pursuant to Section 10.6 2.9 (Right of Set-offMandatory Prepayments) shall require the consent of the Requisite Term Loan Lenders and any such modification of the application of payments to the Revolving Loans pursuant to Section 2.9 (Mandatory Prepayments) or the reduction of the Revolving Credit Commitments pursuant to Section 2.5(b) (Reduction and Termination of the Commitments) shall require the consent of the Requisite Revolving Credit Lenders, (B) any modification of provisions requiring payments to be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis to the U.S. Term Loans and the Canadian Term Loans shall require the consent of the Requisite U.S. Term Lenders and the Requisite 117 Canadian Term Lenders, (C) no amendment, waiver or consent shall, unless in writing and signed by any amounts owing Special Purpose Vehicle that has been granted an option pursuant to Section 11.2(e) (Assignments and Participations), affect the grant or nature of such option or the right or duties of such Special Purpose Vehicle hereunder, (D) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such Defaulting Lender to any Issuer action, affect the rights or Swingline Lender hereunder; thirdduties of the Administrative Agent under this Agreement or the other Loan Documents and (E) no amendment, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting waiver or consent shall, unless in writing and signed by each Swing Loan Lender in accordance addition to the Lenders required above to take such action, affect the rights or duties of the Swing Loan Lenders under this Agreement or the other Loan Documents; and provided, further, that notwithstanding anything herein to the contrary, the Administrative Agent may, with Section 2.20 (Cash Collateral); fourththe consent of the Company, as the Parent Borrower may request (amend, modify or supplement this Agreement to cure any typographical error, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or any Issuer.
(b) The Administrative Agent may, but shall have no Default obligation to, with the written concurrence of any Lender, execute amendments, modifications, waivers or Event consents on behalf of Default has occurred such 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 any Borrower in any case shall entitle such Borrower to any other or further notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of any Revolving Credit Lenders or Term Loan Lenders, the consent of Requisite Lenders is continuingobtained but the consent of any Revolving Credit Lender or Term Loan Lender whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 11.1 being referred to as a "Non-Consenting Lender"), then, as long as the Lender acting as the Administrative Agent is not a Non-Consenting Lender, at the Company's request, an Eligible Assignee acceptable to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent shall have the right with the Administrative Agent's consent and in the Administrative Agent's sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent's request, sell and assign to the Lender acting as the Administrative Agent or such Eligible Assignee, all of the Revolving Credit Commitments and Revolving Credit Outstandings of such Non-Consenting Lender if such Non-Consenting Lender is a Non-Consenting Lender in its capacity as a Revolving Credit Lender and all of the Term Loans of such Non-Consenting Lender if such Non-Consenting Lender is a Non-Consenting Lender in its capacity as a Term Loan Lender, in each case for an amount equal to the principal balance of all such Revolving Loans or Term Loans, as applicable, held by the Non-Consenting Lender and all accrued and unpaid interest and fees with respect thereto through the date of sale; fifthprovided, if so determined however, that such purchase and sale shall be recorded in the Register maintained by the Administrative Agent and the Parent Borrower, to not be held in a deposit account and released pro rata in order to effective until (x) satisfy the Administrative Agent shall have received from such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement Eligible Assignee an agreement in form and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, substance satisfactory to the payment of any amounts owing Administrative Agent and the Company whereby such Eligible Assignee shall agree to be bound by the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, terms hereof and (y) such Non-Consenting Lender shall have received payments of all Revolving Loans were made or Term Loans, as applicable, held by it and all accrued and unpaid interest and fees with respect thereto through the related Letters date of Credit were issued at the sale. Each Lender agrees that, if it becomes a time when Non-Consenting Lender, it shall execute and deliver to the conditions set forth in Section 4.2 Administrative Agent an Assignment an Acceptance to evidence such sale and purchase and shall deliver to the Administrative Agent any Note (Conditions Precedent if the assigning Lender's Loans are evidenced by Notes) subject to each Extension such Assignment and Acceptance; provided, however, that the failure of Creditany Non-Consenting Lender to execute an 118 Assignment and Acceptance shall not render such sale and purchase (and the corresponding assignment) were satisfied or waived, invalid and such payment assignment shall be applied solely to pay recorded in the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoRegister.
Appears in 2 contracts
Samples: Credit Agreement (Novelis Inc.), Credit Agreement (Novelis Inc.)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement or any other Loan Document (other than the Fee Letter, interesteach Letter of Credit Reimbursement Agreement and notice of grant of a security interest with respect to Intellectual Property) nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent, fees signed by the Requisite Lenders (or other amounts received by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right with the consent of Set-offthe Requisite Lenders) and the Borrower or the applicable Loan Party, as the case may be, and then any such waiver or consent shall be applied at such time effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or times as may be determined consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (or the Administrative Agent as follows: firstwith the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit) or 3.2(b) or (c) (Conditions Precedent to Each Loan and Letter of Credit), except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit), subject to the payment provisions of any amounts owing by Section 3.3 (Determinations of Initial Borrowing Conditions);
(ii) increase the Commitment of such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by or subject such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize additional obligation;
(iii) extend the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding scheduled final maturity of any Loan in respect owing to such Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of which principal or interest of any such Defaulting Loan or fees owing to such Lender has failed to fund its portion thereof as required by this Agreement, as determined by (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy reduction of such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and Commitment;
(yiv) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixthforgive, to reduce, or release the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of Borrower from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligations in respect of which Obligation owing to such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loans of, Loan or Reimbursement Obligations owed to, Obligation outstanding and owing to such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or any fee payable hereunder to post cash collateral pursuant such Lender;
(vi) expressly subordinate any of the Obligations or any Liens securing the Obligations;
(vii) postpone any scheduled date fixed for payment of interest or fees owing to this Section 2.21(a)(iisuch Lender or waive any such payment;
(viii) shall be deemed paid change the aggregate Ratable Portions of Lenders required for any or all Lenders to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.take any action hereunder;
Appears in 2 contracts
Samples: Credit Agreement (Amc Entertainment Inc), Credit Agreement (Amc Entertainment Holdings, Inc.)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by the Borrower from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan, reduce the rate of or forgive any interest thereon, or reduce or forgive any fees or other Obligations (whether voluntary or mandatory, at maturity, pursuant other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 or the Arranger for their own account), (Right of Set-offii) shall be applied at such time extend the Maturity Date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments), any interest on any Loan, any fees (other than fees payable to the Administrative Agent hereunder; secondor the Arranger for their own account) or any other Obligations, to the payment on a pro rata basis or (iii) increase or extend any Commitment of any amounts owing by such Defaulting Lender to (it being understood that a waiver of any Issuer condition precedent set forth in SECTION 3.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuing)or mandatory reduction in the Commitments, if agreed to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agentrequisite Lenders hereunder, shall not constitute such an increase); fifthand
(b) unless agreed to by all of the Lenders, if so determined by (i) change the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent and the Parent Borrowerto take, to be held in a deposit account and released pro rata in order to any action hereunder (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 the definition of "Required Lenders"), or (Conditions Precedent to each Extension ii) change any provision of Credit) were satisfied SECTION 2.15 or this SECTION 10.6; and provided further that the Fee Letter may be amended or modified, and any rights thereunder waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on in a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held writing signed by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoparties thereto.
Appears in 2 contracts
Samples: Credit Agreement (Alleghany Corp /De), Credit Agreement (Alleghany Corp /De)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Applicable Administrative Agent Agents with the consent of the Requisite Lenders) and, in the case of any amendment, by the Borrowers, and then any such waiver or consent shall be effective only in the specific instance and for the account of such Defaulting Lender (whether voluntary or mandatoryspecific purpose for which given; provided, at maturityhowever, pursuant to Article 8 (Events of Default) or otherwise) or received by notwithstanding the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as foregoing, each Loan Document may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender amended in accordance with Section 2.20 its express terms; provided, further, that no amendment, waiver or consent shall, unless in writing and signed by each Lender or Issuer directly affected thereby (Cash Collateralor the Administrative Agents with the consent thereof); fourth, as do any of the Parent Borrower may request following:
(so long as no Default i) [reserved];
(ii) [reserved];
(iii) increase the Commitment of such Lender (it being agreed that a waiver of any condition precedent or the waiver of any Default, Event of Default has occurred or mandatory prepayment and is continuing), to the funding of any Loan increase in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers Active Revolving Commitments occurring as a result of the Tranche B Funding Date or the Tranche D Funding Date will not constitute a Commitment increase under this clause (iii));
(iv) extend the scheduled final maturity of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Loan owing to such Lender or Issuer against any Reimbursement Obligation payable to such Defaulting Lender as a result Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal of any such Loan or Reimbursement Obligation or for the reduction of such Defaulting Lender’s breach Commitment (it being agreed that (A) a waiver of its obligations under this Agreement; seventhany condition precedent or the waiver of any Default, so long as no Default or Event of Default has occurred and is continuingor mandatory prepayment will not constitute an extension, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations waiver, reduction or postponement under this Agreement; clause (iv) and eighth(B) the extension of the Tranche B Commitment Termination Date, to such Defaulting Lender the Tranche C Commitment Termination Date or as otherwise directed by a court the Tranche D Commitment Termination Date may be effected with the consent of competent jurisdiction; provided that if the Supermajority Lenders);
(xv) such payment is a payment of reduce the principal amount of any Loans Loan owing to such Lender or any Reimbursement Obligation payable to such Lender (in each case, other than by the payment or prepayment thereof) (it being agreed that a waiver of any condition precedent or the waiver of any Default, Event of Default or mandatory prepayment will not constitute a reduction in the principal amount of any Loan under this clause (v));
(vi) reduce the rate or amount of interest on any Loan outstanding to such Lender or any Reimbursement Obligations in respect outstanding or any fee payable hereunder to such Lender (provided that any waiver, amendment, consent to departure from or other modification of which such Defaulting Lender has not fully funded its appropriate shareSection 7.18 shall be subject to the consent of the Supermajority Lenders but reduction of the percentage specified therein shall require the consent of each affected Lender); provided, and (y) such Loans were made however, that only the consent of the Requisite Lenders shall be necessary to waive any obligation of the Borrowers to pay interest or the related Letters Letter of Credit were issued Participation Fees at a time when the conditions default rate set forth in Section 4.2 2.7(i), 2.13(d) and Section 2.15(c)(ii), respectively;
(Conditions Precedent vii) postpone any scheduled date fixed for payment of interest or fees owing to each Extension such Lender (it being agreed that a waiver of Creditany condition precedent or the waiver of any Default, Event of Default or mandatory prepayment will not constitute a postponement under this clause (vii));
(viii) were satisfied (x) alter the manner in which payments or waivedprepayments of principal, such payment interest or other amounts hereunder shall be applied solely as among the Lenders or (y) change the percentage of Lenders required for any or all Lenders to pay take any action hereunder;
(x) release all or substantially all of the Loans ofCollateral except as provided in Section 10.7(b)(i), (y) release a Borrower from its payment obligation to such Lender under this Agreement or the Notes owing to such Lender (if any) or (z) release any Guarantor from its Guarantee or its obligations under the Pledge and Reimbursement Obligations owed toSecurity Agreement except (I) in connection with the sale or other disposition of such Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement) and (II) in connection with any other transaction permitted pursuant to this Agreement in which such Subsidiary Guarantor ceases to be a Guarantor (including, all Non-Defaulting Lenders on a pro rata basis prior without limitation, in connection with any transaction permitted pursuant to being applied to Section 8.6 and in connection with the payment designation of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time Subsidiary Guarantor as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata an Unrestricted Subsidiary in accordance with this Agreement); provided, however, that notwithstanding the Revolving Credit Commitments without giving effect to foregoing clause (iz), each of the following may be released: (x) above. Any paymentsany Immaterial Guarantor with the consent of each Administrative Agent, prepayments (y) any other Guarantor that ceases to be a Subsidiary of the Parent as the result of a transaction permitted hereunder and (z) with the consent of each Administrative Agent, any Guarantor that, as a result of its status as a Guarantor, would be required to take any action that at such time (I) is prohibited by (A) any Governmental Authority with authority over such Guarantor or other amounts paid (B) applicable law, (II) requires the consent of a Governmental Authority that has not been obtained or payable to a Defaulting Lender that are applied (III) is not within such Guarantor’s legal capacity or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.authority; or
Appears in 2 contracts
Samples: Credit Agreement (McDermott International Inc), Superpriority Senior Secured Credit Agreement (McDermott International Inc)
Amendments, Waivers, Etc. Any Except as may be otherwise specifically set forth in this Agreement or the other Loan Documents, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be amended, modified, waived, discharged or terminated, and no consent to any departure by the Borrower from any provision hereof or thereof may be given, except in a writing signed by the Required Lenders; provided, however, that:
(a) no such amendment, modification, waiver, discharge, termination or consent shall, without the consent of each Lender holding Obligations directly affected thereby, (i) reduce the principal amount of, or rate of interest on, any Loan, or reduce any fees or other monetary Obligations (other than fees payable to the Agent for its own account) or any monetary obligations of any Person now or hereafter primarily or contingently liable with respect to the Obligations or (ii) extend any date fixed for any payment of principal, interestinterest (other than additional interest payable under SECTION 2.6(B) during the continuance of an Event of Default), fees or (other amounts received by than fees payable to the Administrative Agent for its own account) or any other monetary Obligations;
(b) no such amendment, modification, waiver, discharge, termination or consent shall, without the account consent of such Defaulting all Lenders, (i) increase the Commitments of any Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from it being understood that a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuingor of any mandatory reduction in the Total Commitment shall not constitute such an increase), (ii) change the definition of "Required Lenders" or otherwise change the number or percentage of Lenders that shall be required for the Lenders or any of them to take or approve, or direct the Agent to take, any action hereunder, (iii) amend, modify or waive any of the provisions for extending, or take action to extend, the term of the Facility, (iv) amend any provision of this Section, (v) release all or substantially all of the Collateral, (vi) release all or substantially all of the Guarantors from their obligations under the Guaranty Agreement or (vii) consent to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined assignment or transfer by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations or by any other Person now or hereafter primarily or contingently liable with respect to Loans the Obligations, of any of its rights and obligations under this Agreement and or any of the other Loan Documents; and
(yc) Cash Collateralize such Defaulting Lender’s Ratable Portion no provision relating to the rights or obligations of Letter of Credit Obligations with respect to future Letters of Credit issued the Agent or Issuing Bank under this Agreement; sixth, to the payment of Agreement or any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount other Loan Documents may be amended, modified or waived without the consent of any Loans the Agent or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate shareIssuing Bank, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoapplicable.
Appears in 2 contracts
Samples: Loan Agreement (American Oncology Resources Inc /De/), Loan Agreement (American Oncology Resources Inc /De/)
Amendments, Waivers, Etc. Any payment of principalNo amendment, interestmodification, fees waiver or other amounts received ------------------------ discharge or termination of, or consent to any departure by the Administrative Borrower or Holdings from, any provision of this Agreement or any other Credit Document, shall be effective unless in a writing signed by the Required Lenders (or by the Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that -------- ------- no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Agent for its appropriate shareown account), and or (yii) such Loans were made extend the Maturity Date or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any other date fixed for the payment of any Loans ofprincipal of or interest on any Loan (other than additional interest payable under Section 2.8(b) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Agent for its own account) or Reimbursement Obligations owed toany other Obligations;
(b) unless agreed to by all of the Lenders, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any paymentsincrease or extend any Commitment of any Lender (it being understood that a waiver of any Event of Default, prepayments if agreed to by the requisite Lenders hereunder, shall not constitute such an increase), (ii) change the percentage of the aggregate Commitments or other amounts paid of the aggregate unpaid principal amount of the Loans, or payable to a Defaulting Lender the number or percentage of Lenders, that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid required for the Lenders or any of them to take or approve, or direct the Agent to take, any action hereunder (including as set forth in the definition of "Required Lenders"), (iii) release Holdings from its obligations under Article IX; or (iv) change any provision of Section 2.15 or this Section; and
(c) unless agreed to by the Agent in addition to the Lenders required as provided hereinabove to take such action, affect the respective rights or obligations the Agent, as applicable, hereunder or under any of the other Credit Documents; and redirected by such Defaulting Lenderprovided further that the Fee Letter may be amended or modified, and each Lender irrevocably consents heretoany -------- ------- rights thereunder waived, in a writing signed by the parties thereto.
Appears in 2 contracts
Samples: Credit Agreement (Markel Holdings Inc), Credit Agreement (Markel Corp)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall, without the funding consent of all of the Lenders (i) increase the Commitment Amount of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period, (iii) reduce the amount, or extend the time of payment, of the Fees, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan, any Revolving Credit Note or any Reimbursement Obligation (other than the applicability of any post-default increase in such rate of interest), (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result payment of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighthReimbursement Obligation or principal on any Revolving Credit Loan or any Revolving Credit Note, to such Defaulting Lender (vi) decrease or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Revolving Credit Loan, any Revolving Credit Note or any Reimbursement Obligations in respect Obligation, (vii) consent to any assignment or delegation by the Borrower of which any of its rights or obligations under any Loan Document, (viii) change the provisions of this Section 11.1, (ix) change the definition of Required Lenders, (x) change the several nature of the obligations of the Lenders, (xi) change the sharing provisions among Lenders, or (xii) extend the expiration date of a Letter of Credit beyond the Commitment Termination Date. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent, the Issuer or the related Swing Line Lender under any Loan Document without the written consent of the Administrative Agent, the Issuer or the Swing Line Lender, as the case may be, (B) change the Letter of Credit Commitment, change the amount or the time of payment of the Letter of Credit Commissions, or change any other term or provision which relates to the Letter of Credit Commitment or the Letters of Credit were issued at a without the written consent of the Issuer, (C) change the Swing Line Commitment, change the amount or the time when of payment of the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Swing Line Loans or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied interest thereon or change any other term or provision which relates to the Swing Line Commitment or the Swing Line Loans without the written consent of the Swing Line Lender or (D) change the amount or the time of payment of any Loans ofCompetitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Notes and the Reimbursement Obligations. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 2 contracts
Samples: Credit Agreement (CVS Corp), Credit Agreement (CVS Corp)
Amendments, Waivers, Etc. Any (a) This Agreement may not be supplemented, amended or modified without the consent of each Trustee (acting, except in the case of any amendment pursuant to Section 9.5 hereof, with the consent of holders of Certificates of the related Class evidencing interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement), the Subordination Agent, the Policy Provider and each Liquidity Provider; provided, however, that this Agreement may be supplemented, amended or modified without the consent of any Trustee if such supplement, amendment or modification cures an ambiguity or inconsistency or does not materially adversely affect such Trustee or the holders of the related Class of Certificates; provided further, however, that, if such supplement, amendment or modification would (x) directly or indirectly modify or supersede, or otherwise conflict with, Section 2.2(b), Section 3.6(e), Section 3.6(f)(other than the last sentence thereof) (collectively, together with this proviso and Section 9.1, the "Northwest Provisions") or (y) otherwise adversely affect the interests of a potential Replacement Liquidity Provider or of Northwest with respect to its ability to replace any Liquidity Facility or with respect to its payment obligations under any Financing Agreement, Leased Aircraft Indenture or Owned Aircraft Indenture, then such supplement, amendment or modification shall not be effective without the additional written consent of principalNorthwest. Notwithstanding the foregoing, interestwithout the consent of each Certificateholder, fees the Policy Provider and each Liquidity Provider, no supplement, amendment or other amounts modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii) modify Section 2.4, 3.2 or 3.3 hereof, relating to the distribution of monies received by the Administrative Subordination Agent for hereunder from the account of such Defaulting Lender (whether voluntary Equipment Notes or mandatory, at maturity, pursuant to Article 8 (Events the Liquidity Facilities or the Policy. Nothing contained in this Section shall require the consent of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied Trustee at such any time or times as may be determined by the Administrative Agent as follows: first, to following the payment of any amounts owing by such Defaulting Lender Final Distributions with respect to the Administrative Agent hereunder; secondrelated Class of Certificates.
(b) In the event that the Subordination Agent, to as the payment on a pro rata basis registered holder of any amounts owing by such Defaulting Lender Equipment Notes, receives a request for its consent to any Issuer amendment, modification, consent or Swingline Lender hereunder; thirdwaiver under such Equipment Notes, the Indenture pursuant to Cash Collateralize which such Equipment Notes were issued, or the Issuers’ Fronting Exposure related Lease, Participation Agreement or other related document, (i) if no Indenture Default shall have occurred and be continuing with respect to such Defaulting Lender in accordance Indenture, the Subordination Agent shall request directions with Section 2.20 (Cash Collateral); fourthrespect to each Series of such Equipment Notes from the Trustee of the Trust which holds such Equipment Notes, as the Parent Borrower may request (except that so long as the Final Distribution on the Class G Certificates has not been made or any Policy Provider Obligations remain outstanding and no Policy Provider Default or Event of Default has shall have occurred and is be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Subordination Agent shall request directions from the Administrative Agent; fifth, if so determined by Policy Provider rather than the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations Class G Trustee with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to Class G Equipment Notes held in the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate shareClass G Trust, and (y) such Loans were made shall vote or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata consent in accordance with the Revolving Credit Commitments without giving effect to clause directions of such Trustee or the Policy Provider and (iii) above. Any paymentsif any Indenture Default (which, prepayments or other amounts paid or payable in the case of any Indenture pertaining to a Defaulting Lender that are applied (Leased Aircraft, has not been cured by the applicable Owner Trustee or held) to pay amounts owed by a Defaulting Lender or to post cash collateral the applicable Owner Participant, if applicable, pursuant to this Section 2.21(a)(ii4.03 of such Indenture) shall have occurred and be deemed paid continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.1 and redirected 4.4 hereof; provided that no such amendment, modification or waiver shall, without the consent of each Liquidity Provider, the Policy Provider and the Class G Certificateholders, reduce the amount of rent, supplemental rent or stipulated loss values payable by such Defaulting Lender, and each Lender irrevocably consents heretoNorthwest under any Lease or reduce the amount of principal or interest payable by Northwest under any Equipment Note issued under any Indenture in respect of an Owned Aircraft.
Appears in 2 contracts
Samples: Intercreditor Agreement (Northwest Airlines Corp), Intercreditor Agreement (Northwest Airlines Inc /Mn)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan, any Note or any Reimbursement Obligation (other than the applicability of any post‑default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result payment of any judgment Reimbursement Obligation or principal on any Revolving Credit Loan or any Note without the consent of a court of competent jurisdiction obtained by such Borrower against such Defaulting each Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighthdirectly affected thereby, to such Defaulting Lender (vi) decrease or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Revolving Credit Loan, any Note or any Reimbursement Obligations in respect Obligation without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, (xi) change the sharing provisions among Lenders without the consent of each Lender directly affected thereby, or (xii) extend the expiration date of a Letter of Credit beyond the Commitment Termination Date without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent, the Issuer or the related Swing Line Lender under any Loan Document without the written consent of the Administrative Agent, the Issuer or the Swing Line Lender, as the case may be, (B) change the Letter of Credit Commitment, change the amount or the time of payment of any Letter of Credit or any commission or fee payable to the Issuer in connection therewith, or change any other term or provision which relates to the Letter of Credit Commitment or the Letters of Credit were issued at a without the written consent of the Issuer, (C) change the Swing Line Commitment, change the amount or the time when of payment of the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Swing Line Loans or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied interest thereon or change any other term or provision which relates to the Swing Line Commitment or the Swing Line Loans without the written consent of the Swing Line Lender or (D) change the amount or the time of payment of any Competitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans ofand the Notes and the Reimbursement Obligations. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 2 contracts
Samples: Credit Agreement (CVS HEALTH Corp), Credit Agreement (CVS Caremark Corp)
Amendments, Waivers, Etc. Any payment (a) This Agreement may not be supplemented, amended or modified without the consent of principaleach Pass Through Trustee (acting with the consent of holders of Pass Through Certificates of the related Class evidencing interests in the related Pass Through Trust aggregating not less than a majority in interest in such Trust), interestthe Subordination Agent and each Liquidity Provider; provided, fees however, that this Agreement may be supplemented, amended or other amounts modified without the consent of any Pass Through Trustee (i) if such supplement or amendment cures an ambiguity or inconsistency or does not materially adversely affect such Pass Through Trustee or the holders of the related Class of Pass Through Certificates or (ii) to provide for a Non-Extension Drawing under a Replacement Liquidity Facility which is scheduled to expire prior to the date which is 15 days after the Final Legal Distribution Date and for the deposit of such Non-Extension Drawing in the Class A Cash Account provided, in the case of this clause (ii), that the Subordination Agent shall have received a Ratings Confirmation after giving effect to such amendment or modification. Notwithstanding the foregoing, without the consent of each Certificateholder and each Liquidity Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Pass Through Trust evidenced by the Pass Through Certificates issued by such Pass Through Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii) modify Section 2.4, 3.2 or 3.3 hereof, relating to the distribution of monies received by the Administrative Subordination Agent hereunder from the Equipment Trust Certificates or pursuant to the Liquidity Facilities. Nothing contained in this Section shall require the consent of a Pass Through Trustee at any time following the payment of Final Distributions with respect to the related Class of Pass Through Certificates.
(b) In the event that the Subordination Agent, as the registered holder of any Equipment Trust Certificates, receives a request for its consent to any amendment, modification or waiver under such Equipment Trust Certificates, the account Indenture pursuant to which such Equipment Trust Certificates were issued, or the Lease, Participation Agreement or other related document, (i) if no Indenture Event of Default shall have occurred and be continuing, the Subordination Agent shall request instructions with respect to each Series of Equipment Trust Certificates from the Pass Through Trustee of the Pass Through Trust which holds such Equipment Trust Certificates and shall vote or consent in accordance with the instructions of such Defaulting Lender Pass Through Trustee and (whether voluntary or mandatory, at maturity, pursuant to Article 8 ii) if any Indenture Event of Default (Events of Default) or otherwise) or received which has not been cured by the Administrative Agent from a Defaulting Lender applicable Owner Trustee or the applicable Owner Participant pursuant to Section 10.6 (Right 4.03 of Set-offsuch Indenture) shall have occurred and be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure continuing with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourthIndenture, the Subordination Agent will exercise its voting rights as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined directed by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdictionControlling Party; provided that if (x) no such payment is a payment amendment, modification or waiver shall, without the consent of each Liquidity Provider, reduce the amount of rent, supplemental rent or stipulated loss values payable by Federal Express Corporation under the Lease; and provided further that no amendment of or supplement to any Indenture, any Lease or any Participation Agreement or waiver or modification of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans terms of, or Reimbursement Obligations owed toconsent under, such Defaulting Lender until such time as all Loans and funded and unfunded participations any thereof, shall, without the consent of each Liquidity Provider, have any of the effects listed in Letters the provisos to Section 7.11 or 13.02 or Section 8.01(c) of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoIndenture.
Appears in 2 contracts
Samples: Intercreditor Agreement (Federal Express Corp), Intercreditor Agreement (Federal Express Corp)
Amendments, Waivers, Etc. Any payment of principal(a) Neither this Agreement, interestany other Loan Document, fees nor any terms hereof or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as thereof may be determined by the Administrative Agent as follows: firstwaived amended, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer supplemented or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender modified except in accordance with the provisions of this Section 2.20 10.11. The Required Lenders and each Credit Party to the relevant Loan Document may, or, with the written consent of the Required Lenders, the Agent and each Credit Party to the relevant Loan Document may, from time to time, (Cash Collateral); fourthi) enter into written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Credit Parties hereunder or thereunder or (ii) waive, on such terms and conditions as the Required Lenders or the Agent, as the Parent Borrower case may request (so long as no be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default has occurred and is continuing)its consequences; provided, to however, that no such waiver and no such amendment, supplement or modification shall (i) reduce or forgive the funding principal amount or extend the final scheduled date of maturity of any Loan Term Loan, extend the scheduled date of any amortization payment in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreementany Term Loan, as determined by reduce the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to stated rate of any interest or fee payable hereunder (except (x) satisfy such Defaulting in connection with the waiver of applicability of the Default Rate interest rates (which waiver shall be effective with the consent of the Required Lenders) and (y) that any amendment or modification of defined terms used in the financial covenants in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Lender’s potential future funding Term Loan Commitment, in each case without the written consent of each Lender directly affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 10.11 without the written consent of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations with respect to Loans under this Agreement and the other Loan Documents, release the Borrower from its obligation under the Loan Documents or any Guarantor from its obligation under its Guaranty (yexcept as otherwise permitted herein or in the other Loan Documents), in each case without the written consent of all Lenders; (iv) Cash Collateralize such Defaulting change any provision contained in Sections 2.2(c), 2.5, 2.7, 2.8 or 10.10 hereof or this Section 10.11 or Section 10.16 hereof, without the written consent of each Lender directly affected thereby; (v) except as otherwise expressly provided herein, including without limitation, in Section 10.11(b) or in any Security Document, release any of the Collateral without the written consent of each Lender’s Ratable Portion , and (vi) amend, modify or waive any provision of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment Section 9 or any other provision of any amounts owing Loan Document that affects the Agent without the written consent of the Agent. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Non-Defaulting Lenders or and shall be binding upon the Issuers as a result Credit Parties, the Lenders, the Agent and all future holders of the Term Loans. In the case of any judgment of a court of competent jurisdiction obtained by waiver, the Credit Parties, the Lenders and the Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred waived shall be deemed to be cured and is not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
(b) The Lenders hereby irrevocably authorize the Agent, at its option and in its sole discretion, to release any Liens granted to the Agent by the Credit Parties on any Collateral (i) upon the termination of the all Term Loan Commitments, and payment and satisfaction in full in cash of any amounts owing to any Borrower as a result all Term Loans and other Obligations, (ii) constituting Property being sold or disposed of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result if the Credit Party disposing of such Defaulting Lender’s breach Property certifies to the Agent that the sale or disposition is made in compliance with the terms of its obligations this Agreement (and the Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting Property leased to a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; , or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Agent and eighththe Lenders pursuant to Article 8. Except as provided in the preceding sentence or in Section 7.4(e)(5), to such Defaulting Lender or as otherwise directed by a court the Agent will not release any Liens on Collateral without the prior written authorization of competent jurisdictionthe Required Lenders; provided that if (x) such payment is a payment that, the Collateral Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $1,000,000 during any calendar year without the prior written authorization of the principal amount Required Lenders. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any Loans or Reimbursement Obligations in respect sale, all of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or shall continue to constitute part of the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoCollateral.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Animal Health International, Inc.), Term Loan Credit Agreement (Animal Health International, Inc.)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent and the Borrower may, from time to time, enter into written amendments, supplements or modifications of the Loan Documents (which, for the account avoidance of such Defaulting Lender (whether voluntary or mandatorydoubt, at maturityshall require the prior written consent of the Borrower) and, pursuant to Article 8 (Events with the written consent of Default) or otherwise) or received by the Required Lenders and the Borrower, the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument (which terms and conditions shall have been agreed to by the Borrower), to any of the payment requirements of the Loan Documents or any Default or any Event of Default and its consequences, provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the Commitment Amount of any amounts owing by Lender without the consent of such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on (provided that no waiver of a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan, any Note or any Reimbursement Obligation (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount of, or extend the time of payment of, any payment of any Reimbursement Obligation or principal on any Revolving Credit Loan or any Note without the consent of each Lender directly affected thereby, (vi) decrease or forgive the principal amount of any Revolving Credit Loan, any Note or any Reimbursement Obligation without the consent of each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, (xi) change the sharing provisions among Lenders without the consent of each Lender directly affected thereby, or (xii) extend the expiration date of a Letter of Credit beyond the Commitment Termination Date without the consent of each Lender. Notwithstanding the foregoing, in addition to the funding receipt of the prior written consents of the Borrower and the Required Lenders, no such amendment, supplement, modification, waiver or consent shall (A) amend, modify or waive any Loan in respect provision of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Section 10 or otherwise change any of the rights or obligations of the Administrative Agent; fifth, if so determined by any Issuer or the Swing Line Lender under any Loan Document without the written consent of the Administrative Agent, such Issuer or the Swing Line Lender, as the case may be, (B) change the Letter of Credit Commitment, change the amount or the time of payment of any Letter of Credit or any commission or fee payable to the Issuer thereof in connection therewith, or change any other term or provision which relates to the Letter of Credit Commitment of such Issuer or the Letters of Credit issued thereby without the written consent of such Issuer, (C) change the Swing Line Commitment, change the amount or the time of payment of the Swing Line Loans or interest thereon or change any other term or provision which relates to the Swing Line Commitment or the Swing Line Loans without the written consent of the Swing Line Lender or (D) change the amount or the time of payment of any Competitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Issuers, the Administrative Agent and all future holders of the Loans, the Notes and the Reimbursement Obligations. In the case of any waiver, the Borrower, the Lenders, the Issuers and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, (1) the Administrative Agent and the Parent BorrowerBorrower may make amendments contemplated by Section 3.8(c) without the consent of any other Person party hereto, to be held in a deposit account and released pro rata (2) in order to implement any ESG Amendment, this Agreement and the other Loan Documents may be amended in accordance with Section 2.14 with only the consent of the Borrower, the Sustainability Coordinator and the Required Lenders (as and to the extent provided in Section 2.14), (3) if the Administrative Agent and the Borrower shall have jointly identified an obvious error, ambiguity, defect, inconsistency, omission or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any party to any Loan Document (other than the Administrative Agent and the Borrower) if the same (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and does not adversely affect the rights of any Lender or (y) Cash Collateralize is not objected to in writing by the Required Lenders to the Administrative Agent within five Domestic Business Days following receipt of notice thereof, and (4) this Agreement may be amended or amended and restated without the consent of any specific Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such Defaulting Lender’s Ratable Portion amendment or amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended or amended and restated, as the case may be), the Commitments of Letter of Credit Obligations with respect such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to future Letters of Credit issued it or accrued for its account under this Agreement; sixth. Any amendment, to the payment of any amounts owing to the Non-Defaulting Lenders waiver or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata consent effected in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) 11.1 shall be deemed paid to and redirected by such Defaulting Lender, binding upon each Person that is at the time thereof a Lender and each Lender irrevocably consents heretoPerson that subsequently becomes a Lender.
Appears in 2 contracts
Samples: Five Year Credit Agreement (CVS HEALTH Corp), Five Year Credit Agreement (CVS HEALTH Corp)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan, any Note or any Reimbursement Obligation (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result payment of any judgment Reimbursement Obligation or principal on any Revolving Credit Loan or any Note without the consent of a court of competent jurisdiction obtained by such Borrower against such Defaulting each Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighthdirectly affected thereby, to such Defaulting Lender (vi) decrease or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Revolving Credit Loan, any Note or any Reimbursement Obligations in respect Obligation without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, (xi) change the sharing provisions among Lenders without the consent of each Lender directly affected thereby, or (xii) extend the expiration date of a Letter of Credit beyond the Commitment Termination Date without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent, the Issuer or the related Swing Line Lender under any Loan Document without the written consent of the Administrative Agent, the Issuer or the Swing Line Lender, as the case may be, (B) change the Letter of Credit Commitment, change the amount or the time of payment of the Letter of Credit Commissions, or change any other term or provision which relates to the Letter of Credit Commitment or the Letters of Credit were issued at a without the written consent of the Issuer, (C) change the Swing Line Commitment, change the amount or the time when of payment of the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Swing Line Loans or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied interest thereon or change any other term or provision which relates to the Swing Line Commitment or the Swing Line Loans without the written consent of the Swing Line Lender or (D) change the amount or the time of payment of any Competitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans ofand the Notes and the Reimbursement Obligations. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 2 contracts
Samples: Credit Agreement (CVS Caremark Corp), Credit Agreement (CVS Caremark Corp)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement or any other Loan Document (other than the Fee Letter) nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent, interest, fees signed by the Requisite Lenders (or other amounts received by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right with the consent of Set-offthe Requisite Lenders) and the Company or the applicable Loan Party, as the case may be, and then any such waiver or consent shall be applied at such time effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or times as may be determined consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (or the Administrative Agent as follows: firstwith the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit) or 3.2(b) or (c) (Conditions Precedent to Each Loan and Letter of Credit), except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit), subject to the payment provisions of any amounts owing by Section 3.3 (Determinations of Initial Borrowing Conditions);
(ii) increase the Commitment of such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by or subject such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize additional obligation;
(iii) extend the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding scheduled final maturity of any Loan in respect owing to such Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of which principal or interest of any such Defaulting Loan or fees owing to such Lender has failed to fund its portion thereof as required by this Agreement, as determined by (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy reduction of such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and Commitment;
(yiv) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixthforgive, to the payment of reduce, or release any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of Borrower from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement Obligation outstanding and owing to such Lender or any fee payable hereunder to such Lender;
(vi) expressly subordinate any of the Secured Obligations or any Liens securing the Secured Obligations;
(vii) postpone any scheduled date fixed for payment of interest or fees owing to such Lender or waive any such payment;
(viii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(A) release all or substantially all of the Collateral except as provided in respect of which Section 10.8(b) (Concerning the Collateral and the Collateral Documents), (B) release any Borrower from its payment obligation to such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made under this Agreement or the related Letters Notes owing to such Lender (if any), (C) release any material Guarantor or all or substantially all of Credit were issued at the Guarantors from its or their obligations under the Guaranty except in connection with the sale or other disposition of a time when Guarantor (or all or substantially all of the conditions set forth assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement) or (D) amend, modify or waive the proviso in Section 4.2 11.10 (Conditions Precedent to each Extension of CreditBinding Effect); or
(x) were satisfied or waivedamend Section 10.8(b) (Concerning the Collateral and the Collateral Documents), such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause Section 11.7 (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Amc Entertainment Inc), Credit Agreement (Marquee Holdings Inc.)
Amendments, Waivers, Etc. Any payment of principal(a) Neither this Agreement nor the Notes nor any other Loan Document nor any provision hereof or thereof may be amended, interestwaived, fees discharged or other amounts received terminated except by a written instrument signed by the Administrative Agent for on behalf of the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourthLenders or, as the Parent case may be, by the Lenders, and also, in the case of amendments, by the Borrower.
(b) Except where this Agreement or any of the other Loan Documents authorizes or permits the Agent to act alone or requires the automatic release of the Lenders’ Encumbrances on Collateral and except as otherwise expressly provided in this Section 11.7(b), any action to be taken (including the giving of notice) by the Lenders may be taken, and any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given, and any term of this Agreement, any other Loan Document or any other instrument, document or agreement related to this Agreement or the other Loan Documents or mentioned therein may be amended, and the performance or observance by the Borrower may request (so long as no or any other Person of any of the terms thereof and any Default or Event of Default has occurred (as defined in any of the above-referenced documents or instruments) may be waived (either generally or in a particular instance and is continuingeither retroactively or prospectively), to in each case only with the funding written consent of the Majority Lenders; provided, however, that no such amendment, consent or waiver shall (i) increase the Commitment of any Loan in respect Lender without the written consent of which such Defaulting Lender has failed to fund its portion thereof as required by this AgreementLender, as determined by (ii) reduce the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment principal amount of any amounts owing to Loan, or waive or excuse any payment thereof, or reduce the Non-Defaulting Lenders rate of interest thereon, or reduce any premium or fees payable hereunder, without the Issuers as a result written consent of any judgment each Lender directly affected thereby, (iii) postpone the scheduled date of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan, or Reimbursement Obligations in respect any interest (or premium, if any) thereon or any fees payable hereunder, or postpone the scheduled date of which such Defaulting expiration of any Commitment, without the written consent of each Lender has not fully funded its appropriate sharedirectly affected thereby, and (yiv) such Loans were made amend this Section 11.7(b) or change the definition of “Majority Lenders” or the related Letters number of Credit were issued at a time when Lenders which shall be required for the conditions Lenders or any of them to take any action under the Loan Documents, without the written consent of each Lender, (v) change the definition of “Borrowing Base” set forth in Section 4.2 1.1, amend Section 2.1(a) or waive the limitations set forth in Section 2.1(a), without the consent of each Lender, (Conditions Precedent to each Extension of Creditvi) were satisfied release any Collateral, except as provided in Section 10.2(b) or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of as expressly set forth in any Loans ofother Loan Document, or Reimbursement Obligations owed toamend Sections 2.5 or 2.6 hereof, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters without the consent of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting each Lender, and each Lender irrevocably consents heretoor (vii) amend, modify or otherwise affect the rights or duties of the Agent hereunder or under any other Loan Document without the written consent of the Agent.
Appears in 2 contracts
Samples: Credit Agreement (Microfinancial Inc), Credit Agreement (Microfinancial Inc)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Fee Letter, the Control Agreements and the L/C Reimbursement Agreements) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower and any other Loan Party directly affected thereby, (2) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (3) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2) or (3) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to be held any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion of Letter of Credit Obligations with respect Commitment; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.8, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.12;
(Conditions Precedent to each Extension v) except as provided in Section 10.10, release all or substantially all of Credit) were satisfied the Collateral or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment any Guarantor from its guaranty of any Loans of, Obligation of the Borrower;
(vi) reduce or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters increase the proportion of Credit and Swingline Loans are held by Lenders required for the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or heldany subset thereof) to pay amounts owed by a Defaulting Lender take any action hereunder or to post cash collateral pursuant to change the definition of the terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or
(vii) amend Section 10.10 (Release of Collateral or Guarantor), Section 11.9 (Sharing of Payments) or this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.11.1;
Appears in 2 contracts
Samples: Credit Agreement (Duff & Phelps CORP), Credit Agreement (Duff & Phelps Corp)
Amendments, Waivers, Etc. Any payment (a) No amendment, modification or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Obligor therefrom shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent Requisite Lenders, and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no amendment, modification, waiver or consent shall, unless in writing and signed by each Lender, do any of such Defaulting Lender the following:
(whether voluntary i) subject the Lenders to any additional obligations;
(ii) change the scheduled final maturity of the Loans, or mandatory, at maturity, pursuant to Article 8 (Events of Default) change the amount or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the date for payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to date fixed for the payment on a pro rata basis or reduction of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 principal;
(Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (xiii) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of change the principal amount of any Loans Loan (other than by the payment or Reimbursement Obligations prepayment thereof);
(iv) change the rate of interest on any Loan or any fee, indemnity or other amount payable to any Lender;
(v) change any date fixed for payment of such interest, indemnity or other amount or fees;
(vi) amend the definition of "Requisite Lenders" or this Section 9.1(a);
(vii) modify the application of payments to the Loan under Section 2.9; or
(viii) release all or substantially all of the Collateral or release the Guarantor from the guarantee contained in Article VIII; and provided, further, that no amendment, modification, waiver or consent shall, unless in writing and signed by the Loan Agent in addition to the Persons required above to take such action, affect the rights or duties of the Loan Agent under this Agreement or the other Loan Documents.
(b) The Loan Agent may, but shall have no obligation to, with the written 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 Borrowers in any case shall entitle the Borrowers to any other or further notice or demand in similar or other circumstances.
(c) In connection with any proposed amendment, modification, waiver or termination (a "Proposed Change") requiring the consent of all affected Lenders, if the consent of the Loan Agent and of the Requisite Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 9.1 being referred to as a "Non-Consenting Lender"), then (i) at the Borrowers' request, the Loan Agent shall have the right in the Loan Agent's sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Loan Agent's request, sell and assign to the Lender that is acting as the Loan Agent, all of the portion of the Loan of such Non-Consenting Lender for an amount equal to the principal balance of such portion of the Loan held by the Non-Consenting Lender and all accrued interest and fees with respect thereto through the date of which sale, such Defaulting Lender has not fully funded its appropriate sharepurchase and sale to be consummated pursuant to an executed Assignment and Assumption, and (yii) such Loans were made or the related Letters Borrowers may effect a substitution of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Consenting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto2.12.
Appears in 2 contracts
Samples: Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Loan or any Note (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of principal on any Loan or any Note without the consent of each Lender directly affected thereby, (vi) decrease or forgive the principal amount of any Loans Loan or Reimbursement Obligations in respect any Note without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, or (xi) change the sharing provisions among Lenders without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and (y) supplement, modification, waiver or consent shall amend, modify or waive any provision of Article 10 or otherwise change any of the rights or obligations of the Administrative Agent under any Loan Document without the written consent of the Administrative Agent. Any such Loans were made amendment, supplement, modification, waiver or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent consent shall apply equally to each Extension of Credit) were satisfied or waived, such payment the Lenders and shall be applied solely binding upon the parties to pay the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment Notes. In the case of any Loans ofwaiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 2 contracts
Samples: Bridge Credit Agreement (Blue MergerSub Corp.), Bridge Credit Agreement (CVS/Caremark Corp)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Agency Fee Letter or the Fee Letter) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreement(A) cure any ambiguity, as determined by the Administrative Agent; fifthomission, if so determined defect or inconsistency, by the Administrative Agent and the Parent Borrower or (B) grant a new Lien for the benefit of the Secured Parties or extend an existing Lien over additional property, by the Collateral Agent and the Borrower and (2) in the case of any other amendment, waiver or consent by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, that no amendment, consent or waiver described in clause (2) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other Person the signature of which is otherwise required pursuant to any Loan Document, be held effective to do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) extend, waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion Commitment or the stated expiration date of any Letter of Credit Obligations with respect to future Letters of Credit issued under beyond the Scheduled Termination Date; provided, that this Agreement; sixth, clause (iv) does not apply to the payment application of any amounts owing to payment, including as set forth in Section 2.12;
(v) waive or amend any provision of Section 2.12(c) (Application of Payments during an Event of Default) or Section 2.12(d) (Application of Payments Generally);
(vi) except as provided in Section 10.10, release all or substantially all of the Non-Defaulting Lenders Collateral or the Issuers as a result any Guarantor from its guaranty of any judgment Obligation of a court the Borrower;
(vii) reduce or increase the proportion of competent jurisdiction obtained by Lenders required for the Lenders (or any Non-Defaulting Lender subset thereof) to take any action hereunder or Issuer against such Defaulting Lender as a result change the definition of the terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”;
(viii) amend Section 10.10 (Release of Collateral or Guarantors) if the effect of such Defaulting Lender’s breach amendment is a release described in clause (vi) above, Section 11.9 (Sharing of its obligations under Payments) or this Agreement; seventhSection 11.1;
(ix) waive any condition set forth in Section 3.2 as to any Borrowing , so long as no directly or indirectly (including by waiving any Default or Event of Default or amending or modifying Section 3.2 or Section 9.1 if the effect thereof is to permit such Borrowing), without the written consent of the Required Lenders; or
(x) consent to the assignment by any Loan Party of any of its rights and obligations under any Loan Document.
(xi) and provided, further, that (x) any change to the definition of the term “Required Lender” shall require the consent of all of the Lenders, (y) no amendment, waiver or consent shall affect the rights or duties under any Loan Document of, or any payment to, any Agent (or otherwise modify any provision of Article X or the application thereof), any L/C Issuer or any SPV that has occurred been granted an option pursuant to Section 11.2(f) unless in writing and signed by such Agent, such L/C Issuer or, as the case may be, such SPV in addition to any signature otherwise required and (z) the consent of the Borrower shall not be required to change any order of priority set forth in Section 2.12.
(b) Each waiver or consent under any Loan Document shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Loan Party shall entitle any Loan Party to any notice or demand in the same, similar or other circumstances. No failure on the part of any Secured Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. In the case of any waiver, the Borrower, the Lenders, the Administrative Agent and the Collateral Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing, it being understood that no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon (or reduce the amount of any increased interest or fee payments as a consequence of any such Default or Event of Default).
(c) Anything herein to the contrary notwithstanding, during such period as a Lender is continuinga Defaulting Lender, to the payment fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lender or all of the Lenders, as required, have approved any amounts owing to such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided, that any Borrower as a result such amendment or waiver that would increase or extend the term of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result the Commitment of such Defaulting Lender’s breach , extend the date fixed for the payment of its obligations under this Agreement; and eighthprincipal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which fee payable to such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans ofhereunder, or Reimbursement Obligations owed toalter the terms of this proviso, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters will require the consent of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Credit Agreement (Francesca's Holdings CORP), Credit Agreement (Francesca's Holdings CORP)
Amendments, Waivers, Etc. Any payment (a) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturitythis Agreement, pursuant to Article 8 (Events of Default) an agreement or otherwise) or received agreements in writing entered into by the Administrative Borrower, the Agent from a Defaulting Lender and the Required Lenders or (ii) in the case of any other Loan Document, pursuant to Section 10.6 (Right of Set-off) shall be applied at such time an agreement or times as may be determined agreements in writing entered into by the Administrative Agent as follows: firstand the Credit Party or Credit Parties that are parties thereto, to with the payment consent of the Required Lenders; provided that no such agreement shall (i) increase the Revolving Credit Commitment of any amounts owing by Lender without the written consent of such Defaulting Lender to Lender, (ii) reduce or forgive the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding principal amount of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of or Letter of Credit Obligations with respect to future Letters Advances or reduce the rate of Credit issued under this Agreement; sixthinterest thereon, to or reduce or forgive any interest or fees payable hereunder, without the payment written consent of each Lender directly affected thereby (provided, that any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event waiver of Default has occurred and is continuingRate interest shall not be considered a reduction of interest), to the payment (iii) postpone any scheduled date of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters Letter of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Advances, or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any date for the payment of any Loans interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or Reimbursement Obligations owed toexcuse any such payment, such Defaulting or postpone the scheduled date of expiration of any Revolving Credit Commitment, without the written consent of each Lender until such directly affected thereby, (iv) change any provision contained in Sections 2.2(d), 2.2(e), 2.7, 2.11, 2.12, 2.13, 10.9(b) or 10.10 hereof or this Section 10.11 or Section 10.16 hereof, without the written consent of each Lender directly affected thereby, (v) increase the advance rates set forth in the definition of Borrowing Base or add new categories of eligible assets, without the written consent of each Lender, (vi) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender, (vii) release the Borrower or any Guarantor from its obligation under its Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender, or (viii) except as otherwise expressly provided herein, including without limitation, in Section 10.11(b) or in any Security Document, release any of the Collateral without the written consent of each Lender; provided, however, that that nothing in this Section 10.11 shall affect, limit or restrict the Agent’s right to establish, fix, reduce, increase or otherwise revise any standards of eligibility for any items included within the Borrowing Base or any Reserves, from time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata to time in accordance with other provisions of this Agreement and subject to the Revolving limitations set forth herein. Anything in this Section 10.11 to the contrary, no amendment, waiver or consent shall be made with respect to Section 9 without the written consent of the Agent, and no amendment, waiver or consent shall amend, modify or otherwise affect the rights or duties of the Swingline Lender hereunder without the prior written consent of the Swingline Lender.
(b) The Lenders hereby irrevocably authorize the Agent, at its option and in its sole discretion, to release any Liens granted to the Agent by the Credit Commitments without giving effect to clause Parties on any Collateral (i) aboveupon the termination of the all Revolving Credit Commitments, payment and satisfaction in full in cash of all Obligations, (ii) constituting Property being sold or disposed of if the Credit Party disposing of such Property certifies to the Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting Property leased to a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Agent and the Lenders pursuant to Article 8. Except as provided in the preceding sentence or in Section 7.4(e)(5), the Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided that, the Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $1,000,000 during any calendar year without the prior written authorization of the Required Lenders. Any paymentssuch release shall not in any manner discharge, prepayments affect, or impair the Obligations or any Liens (other amounts paid or payable to a Defaulting Lender that are applied than those expressly being released) upon (or heldobligations of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required 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 the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement with an Eligible Assignee in compliance with all relevant provisions of Section 10.12 hereof, and contemporaneously with the replacement of such Non-Consenting Lender, the Borrower shall cause such substitute lender(s) to pay amounts in full, as the purchase price for such assignment, the Obligations owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Non-Consenting Lender, including all accrued, unpaid interest thereon and each any Consequential Loss owing by the Borrower to such Non-Consenting Lender irrevocably consents heretoas a result of such payment, without payment of any prepayment or termination fee. In such event, such Non-Consenting Lender agrees to abide by the relevant provisions of Section 10.12 hereof in connection with the replacement of such Non-Consenting Lender by the Eligible Assignee secured by the Agent or the Borrower. Notwithstanding the foregoing right of the Borrower to replace any such Non-Consenting Lender, neither the Agent nor any Lender shall have any obligation to the Borrower to find or locate any substitute lender or lenders to replace any such Non-Consenting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Animal Health International, Inc.), Credit Agreement (Animal Health International, Inc.)
Amendments, Waivers, Etc. Any payment (1) Subject to any consents required pursuant to this Section 12.2 and any other provisions of principalthis Agreement and any other Loan Document which expressly require the consent, interestapproval or authorization of the Majority Lenders, fees this Agreement and any other Loan Document may be modified or other amounts received supplemented only by an instrument in writing signed by Borrower and the Administrative Agent; provided that, the Administrative Agent for may (without any Lender’s consent) give or withhold its agreement to any amendments of the account of such Defaulting Lender (whether voluntary Loan Documents or mandatory, at maturity, pursuant to Article 8 (Events of Default) any waivers or otherwise) consents in respect thereof or received by exercise or refrain from exercising any other rights or remedies which the Administrative Agent may have under the Loan Documents or otherwise provided that such actions do not, in the Administrative Agent’s judgment reasonably exercised, materially adversely affect the value of any collateral, taken as a whole, or represent a departure from Administrative Agent’s standard of care described in Section 15.5 (and the assignment or granting of a Defaulting participation by Eurohypo shall not limit or otherwise affect its discretion in respect of any of the foregoing), except that the Administrative Agent will not, without the consent of each Lender, agree to the following (provided that no Lender’s consent shall be required for any of the following which are otherwise required or contemplated under the Loan Documents): (a) reduce the principal amount of the Loans or reduce the interest rate thereon; (b) extend any stated payment date for principal of or interest on the Loans payable to such Lender; (c) release Borrower, any Joinder Party, any Guarantor or any other party from liability under the Loan Documents (except for any assigning Lender pursuant to Section 10.6 12.24 and any resigning Administrative Agent pursuant to Section 15.8); (Right d) release or subordinate in whole or in part any material portion of Set-offthe collateral given as security for the Loans; (e) modify any of the provisions of this Section 12.2, the definition of “Majority Lenders” or any other provision in the Loan Documents specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder; (f) modify the terms of any Event of Default; or (g) consent to (i) the sale, transfer or encumbrance of any portion of the Project (or any interest therein) or any direct or indirect ownership interest therein and (ii) the incurrence by Borrower of any additional indebtedness secured by the Project, in each case to the extent (and subject to any standard of reasonability) such consent is required under the Loan Documents. Notwithstanding the foregoing provisions of this Section 12.2, as between Borrower and Lenders, notification by Administrative Agent to Borrower of Administrative Agent’s consent to any of the matters set forth in clauses (a) through and including (g) of the preceding sentence shall be applied at deemed to be the consent of each Lender to such time matter.
(2) Notwithstanding anything to contrary contained in this Agreement, any modification or times as may be determined by the Administrative Agent as follows: firstsupplement of Article 15, to the payment or of any amounts owing by such Defaulting Lender to of the rights or duties of the Administrative Agent hereunder; second, to shall require the payment on a pro rata basis consent of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 2 contracts
Samples: Loan Agreement (Morgans Hotel Group Co.), Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Amendments, Waivers, Etc. Any payment of principalNo amendment, interestmodification, fees waiver or other amounts received discharge or termination of, or consent to any departure by the Administrative Borrower from, any provision of this Agreement or any other Credit Document, shall be effective unless in a writing signed by the Borrower and the Required Lenders (or by the Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender holding or owed Obligations directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Agent for its appropriate shareown account), and or (yii) such Loans were made extend the Tranche A Maturity Date, the Tranche B Maturity Date, the Revolving Credit Maturity Date or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any other date fixed for the payment of any Loans ofprincipal of or interest on any Loan (other than additional interest payable under Section 2.8(b) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Agent for its own account) or any other Obligations;
(b) unless agreed to by all of the Lenders, (i) increase or extend any Commitment of any Lender (it being understood that a waiver of any Event of Default, if agreed to by the requisite Lenders hereunder, shall not constitute such an increase or extension), (ii) change the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or Reimbursement Obligations owed tothe number or percentage of Lenders, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by that shall be required for the Lenders pro rata or any of them to take or approve, or direct the Agent to take or approve, any action hereunder (including as set forth in accordance with the definition of "Required Lenders"), (iii) except as may be otherwise specifically provided in this Agreement or in any other Credit Document, release all or substantially all of the Collateral, release the Parent from the Guaranty, or (iv) change any provision of Section 2.15 or this Section 12.6;
(c) unless agreed to by Revolving Lenders having more than sixty-six and two-thirds percent (66-2/3%) of the Revolving Credit Commitments without giving effect (or, if the Commitments have been terminated, Revolving Lenders holding more than sixty-six and two-thirds percent (66-2/3%) of the aggregate outstanding principal amount of the Revolving Loans), change any provision of Article III or Article IV or reduce or forgive any Reimbursement Obligation;
(d) unless agreed to clause by Tranche B Lenders having more than sixty-six and two-thirds percent (66-2/3%) of the Tranche B Commitments (or, if the Commitments have been terminated, Tranche B Lenders holding more than sixty-six and two-thirds percent (66-2/3%) of the aggregate outstanding principal amount of the Revolving Loans), change any provision of Article III or reduce or forgive any Loan Note Reimbursement Obligation; and
(e) unless agreed to by the Issuing Bank or the Agent in addition to the Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the Issuing Bank or the Agent, as applicable, hereunder or under any of the other Credit Documents; and provided further that (i) above. Any paymentsif any amendment, prepayments modification, waiver or consent would adversely affect the Lenders of Loans of a particular Class (the "affected Class") relative to Lenders of Loans of any other amounts paid Class, then such amendment, modification, waiver or payable to a Defaulting Lender that are applied consent shall require the consent of Lenders holding more than sixty-six and two-thirds percent (or held66-2/3%) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderof the aggregate outstanding principal amount of all Loans of the affected Class, and each (ii) the Fee Letter and any Hedge Agreement to which any Lender irrevocably consents heretois a party may be amended or modified, and any rights thereunder waived, in a writing signed by the parties thereto.
Appears in 2 contracts
Samples: Credit Agreement (Chartwell Re Holdings Corp), Credit Agreement (Chartwell Re Corp)
Amendments, Waivers, Etc. Any payment (a) No amendment, modification or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Obligor therefrom shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent Requisite Lenders, and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no amendment, modification, waiver or consent shall, unless in writing and signed by each Lender, do any of such Defaulting Lender the following:
(whether voluntary i) subject the Lenders to any additional obligations;
(ii) change the scheduled final maturity of the Loans, or mandatory, at maturity, pursuant to Article 8 (Events of Default) change the amount or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the date for payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to date fixed for the payment on a pro rata basis or reduction of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 principal;
(Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (xiii) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of change the principal amount of any Loans Loan (other than by the payment or Reimbursement Obligations prepayment thereof);
(iv) change the rate of interest on any Loan or any fee, indemnity or other amount payable to any Lender;
(v) change any date fixed for payment of such interest, indemnity or other amount or fees;
(vi) amend the definition of "Requisite Lenders" or this Section 9.1(a);
(vii) modify the application of payments to the Loan under Section 2.9; or
(viii) release all or substantially all of the Collateral or release the Guarantor from the guarantee contained in respect Article VIII; and provided, further, that no amendment, modification, waiver or consent shall, unless in writing and signed by the Loan Agent in addition to the Persons required above to take such action, affect the rights or duties of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made the Loan Agent under this Agreement or the related Letters other Loan Documents.
(b) The Loan Agent may, but shall have no obligation to, with the written concurrence of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension any Lender, execute amendments, modifications, waivers or consents on behalf of Credit) were satisfied that Lender. Any waiver or waived, such payment consent shall be applied solely to pay effective only in the Loans of, specific instance and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to for the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.specific purpose for which it was
Appears in 2 contracts
Samples: Loan Agreement (Us Airways Group Inc), Loan Agreement (Us Airways Group Inc)
Amendments, Waivers, Etc. Any payment (a) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturitythis Agreement, pursuant to Article 8 (Events of Default) an agreement or otherwise) or received agreements in writing entered into by the Administrative Agent from a Defaulting Lender Borrowers, the Agents and the Required Lenders or (ii) in the case of any other Loan Document, pursuant to Section 10.6 (Right of Set-off) shall be applied at such time an agreement or times as may be determined agreements in writing entered into by the Administrative Agent as follows: firstApplicable Agent(s) and the Credit Party or Credit Parties that are parties thereto, to with the payment consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any amounts owing by Lender without the written consent of such Defaulting Lender to Lender, (ii) reduce or forgive the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding principal amount of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of or Letter of Credit Obligations with respect to future Letters Advances or reduce the rate of Credit issued under this Agreement; sixthinterest thereon, to or reduce or forgive any interest or fees payable hereunder, without the payment written consent of each Lender directly affected thereby (provided, that any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event waiver of Default has occurred and is continuingRate interest shall not be considered a reduction of interest), to the payment (iii) postpone any scheduled date of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters Letter of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Advances, or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any date for the payment of any Loans interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or Reimbursement Obligations owed toexcuse any such payment, such Defaulting or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender until such directly affected thereby, (iv) change any provision contained in Sections 2.2(d), 2.2(e), 2.7, 2.11, 2.12, 2.13, 10.9(b) or 10.10 hereof or this Section 10.11 or Section 10.16 hereof, without the written consent of each Lender directly affected thereby, (v) increase the advance rates set forth in the definition of US Borrowing Base or Canadian Borrowing Base or add new categories of eligible assets thereto, without the written consent of each Lender, (vi) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender, (vii) release any Borrower or any Guarantor from its obligation under its Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender, or (viii) except as otherwise expressly provided herein, including without limitation, in Section 10.11(b) or in any Security Document, release any of the Collateral without the written consent of each Lender; provided, however, that that nothing in this Section 10.11 shall affect, limit or restrict the Administrative Agent’s right to establish, fix, reduce, increase or otherwise revise any standards of eligibility for any items included within the US Borrowing Base, the Canadian Borrowing Base or any Reserves, from time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata to time in accordance with other provisions of this Agreement and subject to the Revolving limitations set forth herein. Anything in this Section 10.11 to the contrary, no amendment, waiver or consent shall be made with respect to Section 9 without the written consent of the Administrative Agent, and no amendment, waiver or consent shall amend, modify or otherwise affect the rights or duties of the Swingline Lender hereunder without the prior written consent of the Swingline Lender.
(b) The Lenders hereby irrevocably authorize the US Collateral Agent or the Canadian Collateral Agent, as applicable, at its option and in its sole discretion, to release any Liens granted to such Agent by the applicable Credit Commitments without giving effect to clause Parties on any Collateral (i) aboveupon the termination of the all Commitments, payment and satisfaction in full in cash of all Obligations, (ii) constituting Property being sold or disposed of if the Credit Party disposing of such Property certifies to the Applicable Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Applicable Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting Property leased to a Credit Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Agents and the Lenders pursuant to Article 8. Except as provided in the preceding sentence or in Section 7.4(e)(6), no Agent will release any Liens on any Collateral without the prior written authorization of the Required Lenders; provided that, each Applicable Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $1,000,000 during any calendar year without the prior written authorization of the Required Lenders. Any paymentssuch release shall not in any manner discharge, prepayments affect, or impair the Obligations or any Liens (other amounts paid or payable to a Defaulting Lender that are applied than those expressly being released) upon (or heldobligations of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(c) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required 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 the Borrowers may elect to replace a Non-Consenting Lender as a Lender party to this Agreement with an Eligible Assignee in compliance with all relevant provisions of Section 10.12 hereof, and contemporaneously with the replacement of such Non-Consenting Lender, the Borrowers shall cause such substitute lender(s) to pay amounts in full, as the purchase price for such assignment, the Obligations owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Non-Consenting Lender, including all accrued, unpaid interest thereon and each any Consequential Loss owing by any Borrower to such Non-Consenting Lender irrevocably consents heretoas a result of such payment, without payment of any prepayment or termination fee. In such event, such Non-Consenting Lender agrees to abide by the relevant provisions of Section 10.12 hereof in connection with the replacement of such Non-Consenting Lender by the Eligible Assignee secured by the Administrative Agent or the Borrowers. Notwithstanding the foregoing right of the Borrowers to replace any such Non-Consenting Lender, no Agent or Lender shall have any obligation to the Borrowers to find or locate any substitute lender or lenders to replace any such Non-Consenting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Animal Health International, Inc.), Credit Agreement (Animal Health International, Inc.)
Amendments, Waivers, Etc. Any payment No amendment or waiver of principalany provision of any Loan Document, interestnor consent to any departure by a Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower, the Guarantors and the Majority Banks, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no amendment, waiver or consent shall, unless in writing and signed by each Bank, do any of the following:
(a) waive any of the conditions specified in Section 4 (Conditions to Funding);
(b) increase the Commitment of any Bank or alter the term thereof, or subject any Bank to any additional or extended obligations;
(c) change the principal of, or decrease the rate of interest on, the Loans or any Note, or any fees or other amounts received payable hereunder;
(d) postpone any date fixed for any payment of principal of, or interest on, the Loans or any Note, or any fees (including, without limitation, any fee) or other amounts payable hereunder;
(e) change the definition of “Majority Banks” or “Required Banks” or the number of Banks which shall be required for Banks, or any of them, to take any action hereunder;
(f) amend this Section 11.1; or
(g) reduce or limit the obligations of any Guarantor under the Loan Documents or release any Guarantor from its obligations under the Loan Documents; and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent for in addition to each Bank, affect the account rights or duties of such the Agent under any Loan Document. Notwithstanding anything to the contrary herein, no Defaulting Lender Bank shall have any right to approve or disapprove any amendment, waiver or consent hereunder (whether voluntary and any amendment, waiver or mandatory, at maturity, pursuant to Article 8 (Events consent which by its terms requires the consent of Default) all Banks or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as each affected Bank may be determined by effected with the Administrative Agent as follows: first, to consent of the payment of any amounts owing by such applicable Banks other than Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuingBanks), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to except that (x) satisfy the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement Bank and (y) Cash Collateralize such any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect Bank disproportionately adversely relative to future Letters of Credit issued under this Agreement; sixth, to other affected Banks shall require the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result consent of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default Bank. No failure or Event of Default has occurred and is continuing, to delay on the payment part of any amounts owing Bank or the Agent in exercising any power or right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No course of dealing between the Borrower and any Bank or the Agent shall operate as a waiver of any right of any Bank or the Agent. No modification or waiver of any provision of this Agreement or the Note nor consent to any departure by the Borrower as a result of therefrom shall in any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of event be effective unless the principal amount of any Loans or Reimbursement Obligations same shall be in respect of which such Defaulting Lender has not fully funded its appropriate sharewriting, and (y) then such Loans were made waiver or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment consent shall be applied solely effective only in the specific instance and for the purpose for which given. No notice to pay or demand on the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior Borrower in any case shall entitle the Borrower to being applied to the payment of any Loans of, other or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations further notice or demand in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments similar or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretocircumstances.
Appears in 2 contracts
Samples: Credit Agreement (Southern Union Co), Credit Agreement (Panhandle Eastern Pipe Line Co Lp)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of any Loan Document (other than the Fee Letters, interestthe Control Agreements, fees or other amounts received by the Administrative Agent for L/C Reimbursement Agreements and the account Secured Hedging Agreements, the amendment of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) which shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender terms thereof) and no consent to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower, (2) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (3) in the case of any amendment necessary to be held implement the terms of a Facility Increase in accordance with the terms hereof, by the Borrower and the Administrative Agent and (4) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2), (3) or (4) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion of Letter of Credit Obligations with respect Commitment; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.8, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.12;
(Conditions Precedent v) except as provided in Section 10.10, release all or substantially all of the Collateral or any Guarantor from its guaranty of any Obligation of the Borrower;
(vi) reduce or increase the proportion of Lenders required for the Lenders (or any subset thereof) to each Extension take any action hereunder or change the definition of Creditthe terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or
(vii) were satisfied amend Section 10.10 (Release of Collateral or waivedGuarantor), Section 11.9 (Sharing of Payments) or this Section 11.1; and provided, further, that (x)(A) any waiver of any payment applied pursuant to Section 2.12(b) (Application of Mandatory Prepayments) to, and any modification of the application of any such payment shall be applied solely to pay the Loans ofshall require the consent of the Required Revolving Credit Lenders, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied (B) any change to the payment definition of the term “Required Lender” shall require the consent of the Required Lenders, (y) no amendment, waiver or consent shall affect the rights or duties under any Loans Loan Document of, or Reimbursement Obligations owed any payment to, such Defaulting Lender until such time as all Loans the Administrative Agent (or otherwise modify any provision of Article X or the application thereof), the Swingline Lender, any L/C Issuer or any SPV that has been granted an option pursuant to Section 11.2(f) unless in writing and funded and unfunded participations in Letters of Credit and Swingline Loans are held signed by the Lenders pro rata Administrative Agent, the Swingline Lender, such L/C Issuer or, as the case may be, such SPV in accordance with addition to any signature otherwise required and (z) the Revolving Credit Commitments without giving effect consent of the Borrower shall not be required to clause change any order of priority set forth in Section 2.12.
(ib) aboveEach waiver or consent under any Loan Document shall be effective only in the specific instance and for the specific purpose for which it was given. Any paymentsNo notice to or demand on any Loan Party shall entitle any Loan Party to any notice or demand in the same, prepayments similar or other amounts paid or payable circumstances. No failure on the part of any Secured Party to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderexercise, and each Lender irrevocably consents heretono delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
Appears in 2 contracts
Samples: Credit Agreement (Assisted Living Concepts Inc), Credit Agreement (Assisted Living Concepts Inc)
Amendments, Waivers, Etc. Any payment No amendment or waiver of principalany provision of any Loan Document, interestnor consent to any departure by a Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrower, the Guarantors and the Majority Banks, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no amendment, waiver or consent shall, unless in writing and signed by each Bank, do any of the following:
(a) waive any of the conditions specified in Section 4 (Conditions to Funding);
(b) increase the Commitment of any Bank or alter the term thereof, or subject any Bank to any additional or extended obligations;
(c) change the principal of, or decrease the rate of interest on, the Loans or any Note, or any fees or other amounts received payable hereunder (except that the Required Banks may waive in writing the increase in Applicable Margin resulting from the occurrence of an SUG Change of Control);
(d) postpone any date fixed for any payment of principal of, or interest on, the Loans or any Note, or any fees (including, without limitation, any fee) or other amounts payable hereunder;
(e) change the definition of “Majority Banks” or the number of Banks which shall be required for Banks, or any of them, to take any action hereunder;
(f) amend this Section 11.1; or
(g) reduce or limit the obligations of any Guarantor under the Loan Documents or release any Guarantor from its obligations under the Loan Documents; and provided, further, that (I) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent for in addition to each Bank, affect the account rights or duties of such Defaulting Lender the Agent under any Loan Document and (whether voluntary or mandatoryII) at any time after the occurrence of an SUG Change of Control, at maturity, pursuant to Article 8 (Events the approval of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) Required Banks shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (xa) satisfy amend or waive, or consent to any departure from, Section 6.1 (Financial Covenant), Section 6.2 (Liens, Etc.), Section 6.7 (Restricted Payments), Section 7.1 (Liens, Etc.) or Section 7.5 (Restricted Payments) or (b) to amend any defined term relating to any such Defaulting Lender’s potential future funding obligations with respect provision if the effect of any such amendment contemplated in this clause (b) would be to Loans under cause such provision to be less onerous on the relevant Loan Party. No failure or delay on the part of any Bank or the Agent in exercising any power or right hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No course of dealing between the Borrower and any Bank or the Agent shall operate as a waiver of any right of any Bank or the Agent. No modification or waiver of any provision of this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing Note nor consent to any departure by the Borrower as a result of therefrom shall in any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of event be effective unless the principal amount of any Loans or Reimbursement Obligations same shall be in respect of which such Defaulting Lender has not fully funded its appropriate sharewriting, and (y) then such Loans were made waiver or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment consent shall be applied solely effective only in the specific instance and for the purpose for which given. No notice to pay or demand on the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior Borrower in any case shall entitle the Borrower to being applied to the payment of any Loans of, other or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations further notice or demand in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments similar or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretocircumstances.
Appears in 2 contracts
Samples: Credit Agreement (Southern Union Co), Credit Agreement (Panhandle Eastern Pipe Line Co Lp)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by a Borrower from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (whether voluntary provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or mandatory, at maturity, pursuant reduce or forgive any fees hereunder (other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-offor the Arrangers for their own accounts) shall be applied at such time not constitute a reduction of any interest rate or times as may be determined by fees hereunder), (ii) waive, extend or postpone the Administrative Agent as follows: first, to final scheduled maturity date or any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory termination of any Commitments), or waive, extend or postpone the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunder; secondor the Arrangers for their own accounts), to or waive, extend or postpone the time of payment on a pro rata basis of any amounts owing by Reimbursement Obligation or any interest thereon, or waive, extend or postpone the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date, or (iii) increase any Commitment of any such Defaulting Lender to over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any Issuer condition precedent set forth in Section 3.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory termination of the Commitments, if agreed to by the Required Lenders, Required Dollar Revolving Lenders, Required Multicurrency Revolving Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase);
(b) unless agreed to by all of the funding Lenders, (i) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”), (ii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, (iii) release the Parent Borrower of its guaranty under Article XI or (iv) change or waive any provision of Section 2.12(e) or 2.14, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Loan Lenders, or this Section 10.5;
(c) change any provisions of any Credit Document in a manner that by its terms adversely affects the rights in respect of which such Defaulting payments due to Lenders holding Loans of any Class differently than those of Lenders holding Loans of any other Class without the written consent of the requisite percentage in interest of each affected Class of Lenders (i.e., the Required Dollar Revolving Lenders or the Required Multicurrency Revolving Lenders, as applicable); and
(d) unless agreed to by each Multicurrency Revolving Lender, amend the definition of Foreign Currency; provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Lender has failed in addition to fund its portion thereof as the Lenders required above, affect the rights or duties of the Issuing Lender under this Agreement or any other Credit Document relating to the Dollar L/C Commitment, the Multicurrency L/C Commitment or any Letter of Credit issued or to be issued by it, (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement, as determined (iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent; fifthAgent in addition to the Lenders required above, if so determined affect the rights or duties of the Administrative Agent under this Agreement or any other Credit Document, (iv) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (v) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by the Borrowers and the Required Dollar Revolving Lenders or the Required Multicurrency Revolving Lenders, as applicable, (vi) the Administrative Agent and the Parent Borrower, Borrower shall be permitted to be held amend any provision of the Credit Documents (and such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in writing by the Required Lenders within five Business Days after notice thereof) if the Administrative Agent and the Parent Borrower shall have jointly identified an obvious error or any error or omission of a deposit account and released pro rata technical or immaterial nature in order to (x) satisfy any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement provision and (yvii) Cash Collateralize such Defaulting Lender’s Ratable Portion of the Ineligible Assignees Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall Agreement may be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata amended in accordance with Section 9.10(b). Notwithstanding anything to the Revolving Credit Commitments without giving effect to clause (i) above. Any paymentscontrary herein, prepayments or other amounts paid or payable to a no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that are applied (the Commitment of such Lender may not be increased or held) extended without the consent of such Lender. Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as set forth above, each Lender is entitled to pay amounts owed by a Defaulting vote as such Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lendersees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender irrevocably consents heretoacknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein.
Appears in 2 contracts
Samples: Credit Agreement (Intercontinental Exchange, Inc.), Credit Agreement (IntercontinentalExchange Group, Inc.)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan, any Note or any Reimbursement Obligation (other than the applicability of any post‑default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result payment of any judgment Reimbursement Obligation or principal on any Revolving Credit Loan or any Note without the consent of a court of competent jurisdiction obtained by such Borrower against such Defaulting each Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighthdirectly affected thereby, to such Defaulting Lender (vi) decrease or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Revolving Credit Loan, any Note or any Reimbursement Obligations in respect Obligation without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, (xi) change the sharing provisions among Lenders without the consent of each Lender directly affected thereby, or (xii) extend the expiration date of a Letter of Credit beyond the Commitment Termination Date without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent, the Issuer or the related Swing Line Lender under any Loan Document without the written consent of the Administrative Agent, the Issuer or the Swing Line Lender, as the case may be, (B) change the Letter of Credit Commitment, change the amount or the time of payment of the Letter of Credit Commissions, or change any other term or provision which relates to the Letter of Credit Commitment or the Letters of Credit were issued at a without the written consent of the Issuer, (C) change the Swing Line Commitment, change the amount or the time when of payment of the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Swing Line Loans or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied interest thereon or change any other term or provision which relates to the Swing Line Commitment or the Swing Line Loans without the written consent of the Swing Line Lender or (D) change the amount or the time of payment of any Competitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans ofand the Notes and the Reimbursement Obligations. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 2 contracts
Samples: Credit Agreement (CVS Caremark Corp), Credit Agreement (CVS Caremark Corp)
Amendments, Waivers, Etc. Any payment The Agent may, with the prior written consent of principalthe Majority Banks, interestfrom time to time (i) enter into written amendments, fees supplements or other amounts received by modifications hereto; and (ii) at the Administrative Agent for request of the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, Borrower execute and deliver to the payment of any amounts owing by Borrower a written instrument waiving prospectively or retrospectively, on such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, terms and conditions as the Parent Borrower Agent may request (so long as no Default or Event specify in such instrument, any of Default has occurred and is continuing), to the funding requirements of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement Provided that:
(i) no such waiver and (y) Cash Collateralize no such Defaulting Lender’s Ratable Portion amendment, supplement or modification shall, without the prior written consent of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixthall the Banks, to the payment of amend, modify or waive any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal provisions contained in this Agreement which would have the effect of:
(a) reducing the Applicable Margin; or
(b) reducing the amount of any Loans sums due from the Borrower hereunder; or
(c) increasing the Available Commitment of any Bank; or
(d) extending the Final Repayment Date or Reimbursement changing the amount repayable by the Borrower on any Repayment Date; or
(e) changing the definition of Majority Banks or Special Majority Banks; or
(f) changing this Clause 30.16; or
(g) reducing the L/C Commission payable pursuant to Clause 28.2; or
(h) amending or waiving any of the provisions of Clause 19.4 (Claims Pari Passu);
(ii) no such waiver and no such amendment, supplement or modification shall, without the prior written consent of the Special Majority Banks, amend, modify or waive any of the provisions contained in this Agreement which would have the effect of:
(a) amending or waiving any of the provisions of Clauses 19.5 (Obligations in respect under Relevant Documents), 19.6 (Obligations under DBFO Contract and Lease) and 21.1 (Negative Pledge); or
(b) amending or waiving any of which such Defaulting Lender has not fully funded its appropriate sharethe provisions of Clauses 21.5 (Abandonment), 21.6 (Termination etc of DBFO Contract or Construction Contract), 21.13 (The Borrower's Business), and 21.14 (y) such Loans were made or the related Letters Avoidance of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans ofInsurances), and Reimbursement Obligations owed toprovided further that any amendment, all Non-Defaulting Lenders on a pro rata basis supplement or modification which would affect the rights or obligations of the Agent hereunder shall require its prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretowritten consent.
Appears in 2 contracts
Samples: Facility Agreement (Macquarie Infrastructure CO Trust), Facility Agreement (Macquarie Infrastructure Assets Trust)
Amendments, Waivers, Etc. Any payment (a) Except as provided in Sections 2.24 and 2.25 no amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Credit Document nor consent to any departure by any Credit Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Participants (or by the Administrative Agent with the consent of the Requisite Participants) and, in the case of any amendment, by the Applicants, and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, notwithstanding the foregoing, each Credit Document may be amended in accordance with its express terms; provided, further, that no amendment, waiver or consent shall, unless in writing and signed by each Participant or Issuer directly affected thereby (or the Administrative Agent with the consent thereof), do any of the following:
(i) [reserved];
(ii) [reserved];
(iii) increase the Commitment of such Defaulting Lender Participant (whether voluntary it being agreed that a waiver of any condition precedent or mandatorythe waiver of any Default, Event of Default or mandatory prepayment will not constitute a Commitment increase under this clause (iii));
(iv) extend the scheduled final maturity of any Reimbursement Obligation payable to such Participant, or waive, reduce or postpone any scheduled date fixed for the payment of any such Reimbursement Obligation or for the reduction of such Participant’s Commitment (it being agreed that a waiver of any condition precedent or the waiver of any Default, Event of Default or mandatory prepayment will not constitute an extension, waiver, reduction or postponement under this clause (iv));
(v) reduce the amount of any Reimbursement Obligation payable to such Participant (in each case, other than by the payment thereof);
(vi) reduce the rate or amount of interest on any Reimbursement Obligations outstanding or any fee payable hereunder to such Participant; provided, however, that only the consent of the Requisite Participants shall be necessary to waive any obligation of the Applicants to pay interest or Participation Fees payable hereunder at maturitythe default rate set forth in Section 2.7(i), 2.13(d) and Section 2.15(c)(ii), respectively;
(vii) postpone any scheduled date fixed for payment of such interest or fees owing to such Participant (it being agreed that a waiver of any condition precedent or the waiver of any Default, Event of Default or mandatory prepayment will not constitute a postponement under this clause (vii));
(viii) (x) alter the manner in which payments or prepayments of Reimbursement Obligations, interest or other amounts hereunder shall be applied as among the Participants or (y) change the aggregate Ratable Portions of Participants required for any or all Participants to take any action hereunder;
(ix) (x) release all or substantially all of the Collateral except as provided in Section 10.7(b)(i) or (y) release an Applicant from its payment obligations to such Participant under this Agreement or (z) release any Guarantor from its Guarantee or its obligations under the Pledge and Security Agreement except (I) in connection with the sale or other disposition of such Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to Article 8 a waiver or consent of a transaction otherwise prohibited by this Agreement) and (Events II) in connection with any other transaction permitted pursuant to this Agreement in which such Subsidiary Guarantor ceases to be a Guarantor (including, without limitation, in connection with any transaction permitted pursuant to Section 8.6 and in connection with the designation of Defaultany Subsidiary Guarantor as an Unrestricted Subsidiary in accordance with this Agreement); provided, however, that notwithstanding the foregoing clause (z), each of the following may be released: (x) any Immaterial Guarantor with the consent of the Administrative Agent, (y) any other Guarantor that ceases to be a Subsidiary of the Parent as the result of a transaction permitted hereunder and (z) with the consent of the Administrative Agent, any Guarantor that, as a result of its status as a Guarantor, would be required to take any action that at such time (I) is prohibited by (A) any Governmental Authority with authority over such Guarantor or (B) applicable law, (II) requires the consent of a Governmental Authority that has not been obtained or (III) is not within such Guarantor’s legal capacity or authority; or
(x) amend Section 2.16(e) or otherwise(f), Section 10.7(b), this Section 11.1, the sharing provisions of Section 11.7 or the definitions of the terms “Requisite Participants” or “Ratable Portion”; and
(i) no amendment, waiver or received consent shall, unless in writing and signed by the Administrative Agent from a Defaulting Lender pursuant in addition to Section 10.6 (Right the Participants required above to take such action, affect the rights or duties of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: firstunder this Agreement or the other Credit Documents and (ii) no amendment, waiver or consent shall, unless in writing and signed by the Collateral Agent in addition to the payment Participants required above to take such action, affect the rights or duties of the Collateral Agent under this Agreement or the other Credit Documents, (y) no amendment, waiver or consent shall, unless in writing and signed by such Issuer, affect the rights or duties of such Issuer under this Agreement or the other Credit Documents and (z) each fee letter entered into by a Credit Party in connection with this Agreement may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Participant shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment waiver or consent which by its terms requires the consent of all Participants or each affected Participant may be effected with the consent of the Participants other than Defaulting Participant), except that (x) the Commitments of any amounts owing by Defaulting Participant may not be increased or extended without the consent of such Participant, (y) the amount of any Reimbursement Obligation payable to such Defaulting Lender Participant may not be reduced without the consent of such Participant (in each case, other than by the payment or prepayment thereof) and (z) any waiver, amendment or modification requiring the consent of all Participants or each affected Participant that by its terms affects any Defaulting Participant more adversely than other affected Participants shall require the consent of such Defaulting Participant.
(b) The Administrative Agent may, but shall have no obligation to, with the concurrence of any Participant, execute amendments, modifications, waivers or consents on behalf of such Participant. 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 an Applicant in any case shall entitle the Applicants to any other or further notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of all affected Participants, the consent of Requisite Participants is obtained but the consent of other Participants whose consent is required is not obtained (any such Participant whose consent is not obtained as described in this Section 11.1(c) being referred to as a “Non-Consenting Participant”), then, at the Applicants’ request, the Administrative Agent or an Eligible Assignee reasonably acceptable to the Administrative Agent hereunder; second(provided that any Participant, Affiliate of a Participant or an Approved Fund shall be acceptable to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth) shall have the right (but shall have no obligation) to purchase from such Non-Consenting Participant, if so determined by and such Non-Consenting Participant agrees that it shall, upon such request and acceptance, sell and assign to such Participant, Affiliate of a Participant, Approved Fund or Eligible Assignee, all of the Administrative Agent Commitments and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, such Non-Consenting Participant for an amount equal to the payment principal balance of any amounts owing to all applicable Obligations held by the Non-Defaulting Lenders Consenting Participant and all accrued interest and fees with respect thereto and other amounts due and payable hereunder through the date of sale, such purchase and sale to be consummated pursuant to an Assignment and Acceptance delivered to the Administrative Agent, and the Eligible Assignee shall pay any processing and recordation fee (which fee may be waived or reduced in the Issuers as a result sole discretion of any judgment of a court of competent jurisdiction obtained the Administrative Agent); provided, however, that the failure to execute and deliver such Assignment and Acceptance by any the Non-Defaulting Lender or Issuer against Consenting Participant shall not invalidate such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate shareassignment, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, Assignment and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) Acceptance shall be deemed paid to be executed and redirected delivered upon receipt by such Defaulting Lender, Non-Consenting Participant of the proceeds of such sale and each Lender irrevocably consents heretoacceptance.
Appears in 2 contracts
Samples: Letter of Credit Agreement (McDermott International Inc), Letter of Credit Agreement (McDermott International Inc)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and, in the case of any amendment, by each Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the account of such Defaulting specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by with the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuingconsent thereof), to the funding of do any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of following:
(i) waive any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth condition specified in Section 4.2 3.1 (Conditions Precedent to each Extension the Effectiveness of this Agreement) or 3.2(b) (Conditions Precedent to Each Loan and Letter of Credit) were satisfied or waived), such payment shall be applied solely except with respect to pay a condition based upon another provision hereof, the Loans ofwaiver of which requires only the concurrence of the Requisite Lenders and, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied in the case of the conditions specified in Section 3.1 (Conditions Precedent to the payment Effectiveness of any Loans ofthis Agreement), or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters subject to the provisions of Credit and Swingline Loans are held by the Lenders pro rata in accordance with Section 3.3 (Determinations of Initial Borrowing Conditions); AMENDED AND RESTATED CREDIT AGREEMENT SWIFT & COMPANY
(ii) increase the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments Commitment or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Australian Dollar Sublimit of such Lender or subject such Lender to post cash collateral pursuant any additional obligation; provided, however, that any such increase with respect to this the Australian Dollar Sublimits shall require the consent of the Requisite Australian Dollar Lenders;
(iii) extend the scheduled final maturity of any Loan or Reimbursement Obligation owing to such Lender (including by extending the Scheduled Termination Date), or postpone any scheduled date fixed for any payment of principal or interest of any such Loan or Reimbursement Obligation or fees owing to such Lender (it being understood that Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.2.9 (
Appears in 1 contract
Samples: Credit Agreement (S&c Holdco 3 Inc)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of any U.S. Loan Document and no consent to any departure by any U.S. Loan Party therefrom shall be effective unless the same shall be in writing and signed (1) as provided in Section 2.18, interest(2) in the case of an amendment, fees consent or waiver (A) to cure any technical error, ambiguity, omission, defect or inconsistency or (B) granting a new Lien for the benefit of the U.S. Secured Parties or extending an existing Lien over additional Property, in each case by the U.S. Collateral Agents, the Borrower and any other amounts received U.S. Loan Party which is a party to the U.S. Loan Document in question, (3) in the case of any other waiver or consent (other than to effect the intent of clauses (ii), (iii) and (iv) below which, for the avoidance of doubt, shall require consent of each Lender directly affected thereby (or by the Administrative Agent for the account with consent of such Defaulting Lender Lender) and which shall not require consent of the Required Lenders), by the Required Lenders (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting with the consent of the Required Lenders) and (4) in the case of any other amendment (other than to effect the intent of clauses (ii), (iii) and (iv) below which, for the avoidance of doubt, shall also require consent of each Lender pursuant to Section 10.6 directly affected thereby (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to with consent of such Lender) and which shall not require consent of the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuingRequired Lenders), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Parent Borrower;
(i) waive any condition specified in Article 3, except any condition referring to be held in any other provision of any U.S. Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a U.S. Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article 5 or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion of Letter of Credit Obligations with respect Commitment; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.8, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.12;
(Conditions Precedent v) except as provided in Section 10.10, release all or substantially all of the U.S. Collateral or any Guarantor from its guaranty of any U.S. Secured Obligation of the Borrower;
(vi) reduce or increase the proportion of Lenders required for the Lenders (or any subset thereof) to each Extension take any action hereunder or change the definition of Creditthe terms “Pro Rata Share” or “Pro Rata Outstandings”; or
(vii) were satisfied alter Section 2.3 or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on U.S. Revolving Borrowing Base in a pro rata basis prior to being applied manner that is less favorable to the payment Lenders or affects the amount of any U.S. Revolving Loans ofto be made thereunder; and provided, further, that no amendment, consent or Reimbursement Obligations owed towaiver described in clause (3) or (4) above shall, such Defaulting unless in writing and signed by each Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held (or by the Lenders pro rata in accordance Administrative Agent with the Revolving Credit Commitments without giving effect consent of each Lender), in addition to clause any other Person the signature of which is otherwise required pursuant to any U.S. Loan Document, (i) above. Any payments, prepayments change the definition of the terms “Required Lenders” or other amounts paid or payable to a Defaulting Lender that are applied (ii) amend Section 2.8(a) (or heldany related definition), Section 2.12(c) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to (d), Section 10.10, Section 10.11, Section 11.9 or this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.11.1;
Appears in 1 contract
Amendments, Waivers, Etc. Any (a) Except as otherwise set forth in this Agreement with respect to actions by the Agent or as otherwise set forth in any Loan Document, neither this Agreement, the Notes nor any other Loan Document nor any provision of this Agreement, the Notes, or the Loan Documents may be amended, waived, discharged or terminated except by a written instrument signed by the Agent on behalf of the Lenders or by the Required Lenders, and in the case of amendments, by the Borrower.
(i) Except where this Agreement or any of the other Loan Documents authorizes or permits the Agent to act alone and except as otherwise expressly provided in this Section 11.7(b), any action to be taken (including the giving of notice) by the Lenders may be taken, and any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given, and any term of this Agreement, any other Loan Document or any other instrument, document or agreement related to this Agreement or the other Loan Documents or mentioned therein may be amended, and the performance or observance by the Borrower or any other Person of any of the terms thereof and any Default or Event of Default (as defined in any of the above-referenced documents or instruments) may be waived (either generally or in a particular instance and either retroactively or prospectively), in each case only with the written consent of the Required Lenders; provided, however, that (a) no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Required Lenders or all the Lenders, as the case may be, affect the rights, duties or liabilities of the Agent under this Agreement or any other Loan Document, (b) any fee or other amount payable solely to the Agent may be amended with the consent of Borrower and the Agent, (c) no amendment, waiver or consent, unless in writing and signed by the Swingline Lender in addition to the Required Lenders or all Lenders as the case may be, shall affect the rights, duties or liabilities of the Swingline Lender under this Agreement or any other Loan Document, and (d) no amendment, waiver or consent, unless in writing and signed by U.S. Bank in addition to the Required Lenders or all Lenders, as the case may be, shall affect the rights, duties or liabilities of U.S. Bank under this Agreement or any other Loan Document with respect to the Total Demonstrator Vehicle Commitment; provided, further, that the Swingline Lender may increase the Swingline Commitment (not to exceed $10,000,000) and the Fee associated with such Commitment without the consent of any other Lender, and U.S. Bank may increase the Fee associated with the Total Demonstrator Vehicle Commitment without the consent of any other Lender.
(ii) Notwithstanding the foregoing, no amendment, waiver or consent shall do any of the following unless in writing and signed by ALL of the Lenders:
(A) increase the amount of or extend the Maturity Date or the termination date of any Commitment of any Lender, or increase the Total New Vehicle Commitment, Total Program and Used Vehicle Commitment, the Total Demonstrator Vehicle Commitment, or the Acquisition Loan Commitment;
(B) postpone or delay any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender due to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and or under any other Loan Document (yexcept as they relate to Swingline Loans or Demonstrator Vehicle Loans, which shall only require the consent of the Lender(s) Cash Collateralize such Defaulting Lender’s Ratable Portion having a Swingline Loan Commitment or a Demonstrator Vehicle Loan Commitment, respectively);
(C) reduce the principal of, or the rate of Letter interest on any Obligations, including any Loan, or any fees or other amounts payable under this Agreement or under any other Loan Document (except as they relate to Swingline Loans or Demonstrator Vehicle Loans, which shall only require the consent of Credit Obligations with respect the Lender(s) having a Swingline Loan Commitment or a Demonstrator Vehicle Loan Commitment, respectively);
(D) change the definition of Required Banks which are required to future Letters of Credit issued take any action under this Agreement; sixth;
(E) amend this Section 11.7(b), to the payment of or any amounts owing to the Non-Defaulting Lenders provision in this Agreement which requires consent on other action by all Lenders;
(F) release all or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment substantial part of the principal amount of Collateral for the Obligations; or
(G) release any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoGuarantor.
Appears in 1 contract
Samples: Credit Agreement (Lithia Motors Inc)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by the Borrower from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Administrative Agent for its appropriate shareown account), and or (yii) such Loans were made or extend the related Letters of Credit were issued at a time when the conditions Maturity Date as set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied SECTION 2.18 or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to otherwise or any other date fixed for the payment of any Loans ofprincipal of or interest on any Loan (other than interest payable under SECTION 2.7(B)), any fees (other than fees payable to the Administrative Agent for its own account) or Reimbursement Obligations owed toany other Obligations;
(b) unless agreed to by all of the Lenders, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any paymentsincrease or extend any Commitment of any Lender (it being understood that a waiver of any Event of Default, prepayments if agreed to by the requisite Lenders hereunder, shall not constitute such an increase), (ii) change the percentage of the aggregate Commitments or other amounts paid of the aggregate unpaid principal amount of the Loans, or payable to a Defaulting Lender the number or percentage of Lenders, that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder (including as set forth in the definition of "Required Lenders"), or (iii) change any provision of SECTION 2.14 or this Section; 66 and redirected by such Defaulting LenderPROVIDED FURTHER that the Fee Letter may be amended or modified, and each Lender irrevocably consents heretoany rights thereunder waived, in a writing signed by the parties thereto.
Appears in 1 contract
Samples: Credit Agreement (Everest Reinsurance Holdings Inc)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis provision of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined and no consent to any departure by any party from the provisions of this Agreement, shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent; fifth, if so determined by the Administrative Agent Issuer and the Parent BorrowerSecurity Trustee, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of the Security Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. In executing and delivering any amendment or modification to this Agreement, the Security Trustee shall be held in a deposit account and released pro rata in order entitled to (xi) satisfy an Confidential Treatment Requested: Information for which confidential treatment has been requested is omitted and is noted with asterisks. An unredacted version of this document has been filed separately with the Securities and Exchange Commission. Opinion of Counsel stating that such Defaulting Lender’s potential future funding obligations with respect amendment is authorized and permitted pursuant to Loans under the Indenture and this Agreement and that such amendment or modification complies with the terms thereof and hereof and (yii) Cash Collateralize such Defaulting Lenderan Officer’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, Certificate stating that all conditions precedent to the payment execution, delivery and performance of such amendment have been satisfied in full. The foregoing provisions shall not apply to the execution and delivery of any amounts owing supplement hereto as provided for herein (including, without limitation, any Grantor Supplement or Collateral Supplement) to the Non-Defaulting Lenders extent that any such supplement does not purport to amend, modify or waive any provision of this Agreement other than as contemplated by clauses (b) and (c) below. The Security Trustee and the Issuers as a result of Operating Bank may, but shall have no obligation to, execute and deliver any judgment amendment or modification which would affect its duties, powers, rights, immunities or indemnities hereunder.
(b) Upon the execution and delivery by an Additional Grantor of a court Grantor Supplement, Annexes I, II, III, IV and V attached to such Grantor Supplement shall be incorporated into, become a part of competent jurisdiction obtained and supplement Section 2.01 and Schedules I, II, III, IV and V, respectively, and the Security Trustee may attach such Annexes as supplements to such Schedules; and each reference to such Schedules shall be a reference to such Schedules as so supplemented.
(c) Upon the execution and delivery by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment Grantor of a court Collateral Supplement, Annexes I, II and V attached to such Collateral Supplement shall be incorporated into, become a part of competent jurisdiction obtained by and supplement Schedules I, II and V, respectively, and the Security Trustee may attach such Borrower against Annexes as supplements to such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this AgreementSchedules; and eighth, each reference to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment Schedules shall be applied solely a reference to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time Schedules as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoso supplemented.
Appears in 1 contract
Samples: Security Trust Agreement (Willis Lease Finance Corp)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by the Borrower from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Administrative Agent for its appropriate shareown account), and or (yii) such Loans were made extend the Maturity Date or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any other date fixed for the payment of any Loans ofprincipal of or interest on any Loan (other than additional interest payable under Section 2.8(c) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Administrative Agent for its own account) or Reimbursement Obligations owed toany other Obligations;
(b) unless agreed to by all of the Lenders, such Defaulting (i) increase (except as provided pursuant to Section 2.20) or extend any Commitment of any Lender until such time as all Loans and funded and unfunded participations in Letters (it being understood that a waiver of Credit and Swingline Loans are held any Event of Default, if agreed to by the requisite Lenders pro rata hereunder, shall not constitute such an increase), (ii) increase the Aggregate Revolving Commitments pursuant to Section 2.20 or otherwise to an aggregate amount in accordance with excess of $450,000,000, (iii) change the percentage of the Aggregate Revolving Commitments or of the aggregate unpaid principal amount of the Revolving Credit Commitments without giving effect to clause (i) above. Any paymentsExposure, prepayments or other amounts paid the number or payable to a Defaulting Lender percentage of Lenders, that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid required for the Lenders or any of them to and redirected take or approve, or direct the Administrative Agent to take, any action hereunder (including as set forth in the definition of “Required Lenders”), or (iv) change any provision of Section 2.15 or this Section;
(c) unless agreed to by the Administrative Agent in addition to the Lenders required as provided hereinabove to take such Defaulting action, affect the respective rights or obligations of the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents; and
(d) unless agreed to by the Swingline Lender in addition to the Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the Swingline Lender, as applicable, hereunder or under any of the other Credit Documents; and each Lender irrevocably consents heretoprovided further that the Fee Letter may be amended or modified, and any rights thereunder waived, in a writing signed by the parties thereto.
Appears in 1 contract
Samples: Credit Agreement (Markel Corp)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Fee Letter and the Control Agreements) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower, (2) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (3) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2) or (3) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to be held any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender or (B) any fee (including, without limitation, any Prepayment Fee) or accrued interest payable to such Lender; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion of Letter of Credit Obligations with respect Commitment; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.8, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.12;
(Conditions Precedent to each Extension v) except as provided in Section 10.10, release all or substantially all of Credit) were satisfied the Collateral or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment any Guarantor from its guaranty of any Loans of, Obligation of the Borrower;
(vi) reduce or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters increase the proportion of Credit and Swingline Loans are held by Lenders required for the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or heldany subset thereof) to pay amounts owed by a Defaulting Lender take any action hereunder or to post cash collateral pursuant to change the definition of the terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or 73 SECOND LIEN CREDIT AGREEMENT DANKA OFFICE IMAGING (vii) amend Section 10.10 (Release of Collateral or Guarantors), Section 11.9 (Sharing of Payments) or this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.11.1;
Appears in 1 contract
Samples: Second Lien Credit Agreement (Danka Business Systems PLC)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Borrower or Subsidiary thereof from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan, reduce the rate of or forgive any interest thereon (whether voluntary provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or mandatory, at maturity, pursuant reduce or forgive any fees hereunder (other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 or the Arranger for its own account), (Right of Set-offii) shall be applied at such time extend the final scheduled maturity date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments, but excluding any mandatory prepayment of the Loans pursuant to Sections 2.6(c) and 2.6(d) or reduction or termination of the Commitments in connection therewith), or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunder; secondor the Arranger for its own account), to the payment on a pro rata basis or (iii) increase any Commitment of any amounts owing by such Defaulting Lender to over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any Issuer condition precedent set forth in Section 3.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory reduction in the Commitments, if agreed to by the Required Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase); or
(b) unless agreed to by all of the funding of any Loan Lenders, (i) release the Parent from its obligations under Article VIII other than as may be otherwise specifically provided in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by (ii) reduce the Administrative Agent; fifthpercentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, if so determined by or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent and to take, any action hereunder or under any other Credit Document (including as set forth in the Parent Borrowerdefinition of “Required Lenders”), to be held in a deposit account and released (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, (iv) change or waive any provision of Section 2.15, any other provision of this Agreement or any other Credit Document requiring pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment treatment of any amounts owing Lenders, or this Section 11.5 or (v) amend, modify or waive any condition precedent to the Non-Defaulting Lenders or the Issuers as a result any Borrowing set forth in Section 3.2 (including in connection with any waiver of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no an existing Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this AgreementDefault); and eighth, to such Defaulting Lender provided further that the Fee Letter may only be amended or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate sharemodified, and (y) such Loans were made or any rights thereunder waived, in a writing signed by the related Letters parties thereto. Notwithstanding the fact that the consent of Credit were issued at a time when the conditions all Lenders is required in certain circumstances as set forth in Section 4.2 (Conditions Precedent above, each Lender is entitled to each Extension of Credit) were satisfied or waived, vote as such payment shall be applied solely to pay Lender sees fit on any bankruptcy reorganization plan that affects the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting LenderLoans, and each Lender irrevocably consents heretoacknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon, or reduce or forgive any fees hereunder (whether voluntary or mandatory, at maturity, pursuant other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Agent, the Arranger or the Issuing Lender pursuant to Section 10.6 for its own account), (Right of Set-offii) shall be applied at such time extend the final scheduled maturity date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments, but excluding any mandatory prepayment of the Loans pursuant to Sections 2.6(d) through 2.6(g) or reduction or termination of the Revolving Credit Commitments in connection therewith), extend the time of payment of any Reimbursement Obligation or any interest thereon, extend the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date, or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent, the Arranger or the Issuing Lender for its own account), or (iii) modify the amortization schedule set forth in Section 2.6(a);
(b) unless agreed to by all of the Lenders, (i) except as may be otherwise specifically provided in this Agreement or in any other Credit Document, release all or substantially all of the Collateral, release any Guarantor from its obligations under the Guaranty Agreement, (ii) change the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent hereunder; secondto take, to any action hereunder (including as set forth in the payment on a definition of “Required Lenders”), (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, (iv) change or waive any provision of Section 2.15, any other provision of this Agreement or any other Credit Document requiring pro rata basis treatment of any amounts owing by such Defaulting Lenders, or this Section 11.6, or (v) increase or extend any Commitment of any Lender to (it being understood that a waiver of any Issuer condition precedent set forth in Section 4.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory reduction in the Commitments, if agreed to by the Required Lenders, Required Revolving Credit Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase);
(c) unless agreed to by all of the funding Revolving Credit Lenders, change the percentage set forth in the definition of “Required Revolving Credit Lenders” (it being understood that no consent of any Loan in respect of which such Defaulting other Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by or the Administrative Agent and is required);
(d) unless agreed to by the Parent BorrowerRequired Revolving Credit Lenders, (i) except for any such changes to be held in a deposit account and released pro rata in order to (xwhich Section 11.6(a) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion applies, change any provision of Article III or any terms or provisions of any Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment or any supporting documentation relating thereto (it being understood that no consent of any amounts owing to the Non-Defaulting Lenders other Lender or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventhAdministrative Agent is required), so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.or
Appears in 1 contract
Amendments, Waivers, Etc. Any payment of principalthe Participation Agreement or Parent Guarantee. Without the consent of a Majority in Interest of Noteholders, interestthe respective parties to the Participation Agreement may not modify, fees amend or other amounts received by the Administrative Agent supplement such agreement, or give any consent, waiver, authorization or approval thereunder, for the account purpose of such Defaulting Lender (whether voluntary adding any provisions to or mandatorychanging in any manner or eliminating any of the provisions thereof or of modifying in any manner the rights of the respective parties thereunder; provided that, at maturitywithout the consent of the Loan Trustee, pursuant to Article 8 (Events of Default) any Noteholder, any other Indenture Indemnitee or otherwise) or received by any Related Indenture Indemnitee, the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as Participation Agreement and/or the Parent Guarantee may be determined by the Administrative Agent as follows: firstmodified, amended or supplemented in order (i) to the payment of cure any amounts owing by such Defaulting Lender defect or inconsistency therein or to the Administrative Agent hereunder; secondcure any ambiguity or correct any mistake, (ii) to the payment on a pro rata basis of amend, modify or supplement any amounts owing by such Defaulting Lender to provision thereof or make any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure other provision with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourthmatters or questions arising thereunder or under this Indenture, as provided that the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding making of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by other provision shall not materially adversely affect the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment interests of the principal amount of Noteholders, (iii) to make any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans ofother change, or Reimbursement Obligations owed toreflect any other matter, such Defaulting Lender until such time as all Loans and funded and unfunded participations of the kind referred to in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause clauses (i) above. Any paymentsthrough (xv) of Section 9.01 or (iv) in the case of the Parent Guarantee, prepayments to add the Company’s payment obligations under the new Series B Equipment Notes (and Related Series B Equipment Notes), if any, issued in connection with the refinancing of Series B Equipment Notes or other amounts paid or payable to a Defaulting Lender that are applied Additional Series Equipment Notes (or heldand Related Additional Series Equipment Notes) to pay amounts owed by a Defaulting Lender the “Obligations” under the Parent Guarantee. Notwithstanding the foregoing, without the consent of any Liquidity Provider, the Company shall not enter into any amendment, waiver or modification of or supplement or consent to post cash collateral pursuant to this Section 2.21(a)(ii) the Participation Agreement which shall be deemed paid to and redirected by reduce, modify or amend any indemnities in favor of such Defaulting Lender, and each Lender irrevocably consents heretoLiquidity Provider contained therein.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement, interest, fees the Orders or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or the Administrative Agent Agent, with the written consent of the Requisite Lenders), and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender, do any of such Defaulting Lender the following:
(whether voluntary i) waive any of the conditions specified in Section 3.1, 3.2 or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure 3.3 except with respect to such Defaulting Lender in accordance with Section 2.20 a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders;
(Cash Collateral); fourth, as ii) increase the Parent Borrower may request Commitments of the Lenders or subject the Lenders to any additional obligations;
(so long as no Default or Event of Default has occurred and is continuing), to iii) extend the funding scheduled final maturity of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this AgreementLoan, as determined by the Administrative Agent; fifthor waive, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to reduce or postpone any scheduled date fixed for the payment or reduction of any amounts owing to principal (it being understood that Section 2.9 does not provide for scheduled dates fixed for payment) or of the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if Commitments;
(xiv) such payment is a payment of reduce the principal amount of any Loan (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or any fee payable hereunder;
(vi) postpone any scheduled date fixed for payment of such interest or fees;
(vii) change the Ratable Portion of any Lender, or change the aggregate Ratable Portions of the Lenders which shall be required for the Lenders or any of them to take any action hereunder;
(viii) release all or substantially all of the Collateral except as provided in Section 11.7(a) or release any Subsidiary Guarantor from its obligations under the Guaranty except in connection with any sale or other disposition permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement); or
(ix) amend Section 11.7(a) or this Section 13.1 or the definition of the terms “Requisite Lenders” or “Ratable Portion”; and provided, further, (A) that any modification of the application of payments to the Loans pursuant to Section 2.9 or Reimbursement Obligations the reduction of the Commitments pursuant to Section 2.5(c) shall require the consent of the Requisite Lenders and the Administrative Agent in respect the case of which such Defaulting Lender has not fully funded its appropriate share, Section 2.9 and (yB) that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such Loans were made action, affect the rights or duties of the Administrative Agent under this Agreement, the Orders or the related Letters other Loan Documents.
(b) The Administrative Agent may, but shall have no obligation to, with the written concurrence of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension any Lender, execute amendments, modifications, waivers or consents on behalf of Credit) were satisfied that Lender. Any waiver or waived, such payment consent shall be applied solely effective only in the specific instance and for the specific purpose for which it was given. No notice to pay or demand on the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior Borrower in any case shall entitle the Borrower to being applied to the payment of any Loans of, other or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations further notice or demand in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments similar or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretocircumstances.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Multiple Draw Term Loan Agreement (Pliant Corp)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to PROVIDED that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment PROVIDED that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan or any Note (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of principal on any Revolving Credit Loan or any Note without the consent of each Lender directly affected thereby, (vi) decrease or forgive the principal amount of any Loans Revolving Credit Loan or Reimbursement Obligations in respect any Note without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, or (xi) change the sharing provisions among Lenders without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent under any Loan Document without the written consent of the Administrative Agent or (B) change the amount or the related Letters time of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Competitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans ofand the Notes. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 1 contract
Samples: 364 Day Credit Agreement (CVS Corp)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to in writing by each Lender directly affected thereby, (i) reduce or forgive the principal amount of any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or reduce or forgive any fees hereunder (other than fees payable to the Administrative Agent, the Arranger or the Issuing Lender for its own account) (it being understood that an amendment to the definition of Leverage Ratio (or any defined terms used therein) shall not constitute a reduction of any interest rate or fees hereunder), (ii) extend the final scheduled maturity date or any other scheduled date for the payment of any principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments, but excluding any mandatory prepayment of the Loans pursuant to Sections 2.6(d) through 2.6(f) or reduction or termination of the Revolving Credit Commitments in connection therewith), extend the time of payment of any Reimbursement Obligation or any interest thereon, extend the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date, or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent, the Arranger or the Issuing Lender for its own account), (iii) increase any Commitment of any such Lender over the amount thereof in effect or extend the maturity thereof, or (iv) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”);
(b) unless agreed to in writing by all of the Lenders, (i) release all or substantially all of the Collateral (except as may be otherwise specifically provided in this Agreement or in any other Credit Document), (ii) release any Guarantor (other than an Immaterial Subsidiary) from its obligations under the Guaranty (other than (A) as may be otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the Capital Stock of such Guarantor in a transaction expressly permitted under or pursuant to this Agreement), (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, or (iv) change or waive any provision of Section 2.15, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders, or this Section 11.5;
(c) unless agreed to in writing by the Issuing Lender, the Swingline Lender or the Administrative Agent in addition to the Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the Issuing Lender, the Swingline Lender or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents; and
(d) unless agreed to in writing by each Hedge Party that would be adversely affected thereby in its capacity as such relative to the Lenders, (i) amend the definition of “Secured Obligations” in any Security Document or the definition of “Guaranteed Obligations” in the Guaranty (or any similar defined term in any other Credit Document benefiting such Hedge Party), (ii) amend the definition of “Secured Parties” in any Security Document or “Guaranteed Parties” in the Guaranty (or any similar defined term in any other Credit Document benefiting such Hedge Party), (iii) amend any provision regarding priority of payments in this Agreement or any other Credit Document, (iv) release all or substantially all of the Collateral (except as may be otherwise specifically provided in this Agreement or in any other Credit Document), or (v) release any Guarantor from its obligations under the Guaranty (other than (A) as may be otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the Capital Stock of such Guarantor in a transaction expressly permitted under or pursuant to this Agreement); and provided further that (i) if any amendment, modification, waiver or consent would adversely affect the holders of Loans of a particular Class (the “Affected Class”) relative to holders of Loans of another Class (including, without limitation, by way of reducing the relative proportion of any payments, prepayments or Commitment reductions to be applied for the benefit of holders of Loans of the Affected Class under Sections 2.6(d) through 2.6(f), then such amendment, modification, waiver or consent shall require the written consent of Lenders holding at least 66 2/3% of the aggregate outstanding principal amount of all Loans (and unutilized Commitments, if any) of the Affected Class, and (ii) the Engagement Letter may only be amended or modified, and any rights thereunder waived, in a writing signed by the parties thereto. Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender and (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Defaultii) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent BorrowerBorrower shall have jointly identified (each in its sole discretion) an obvious error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the applicable Loan Parties shall be permitted to be held amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in a deposit account and released pro rata in order to (x) satisfy writing by the Required Lenders within five Business Days following the posting of such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, amendment to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoLenders.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees or other amounts received any provision of any Loan Document and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in writing and signed by the Administrative Agent for Required Purchasers and the account Issuer; provided, however, that no amendment, consent or waiver shall, unless in writing and signed by each Purchaser directly affected thereby, in addition to any other Person the signature of such Defaulting Lender (whether voluntary or mandatory, at maturity, which is otherwise required pursuant to Article 8 any Loan Document, do any of the following:
(Events i) waive any condition specified in Section 3.1, except any condition referring to any other provision of Defaultany Loan Document;
(ii) reserved;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or received by any obligation of the Administrative Agent from a Defaulting Lender pursuant Issuer to Section 10.6 repay (Right of Set-off) shall be applied at such time whether or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment not on a pro rata basis of fixed date), any amounts outstanding Note owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 Purchaser, or (Cash Collateral)B) any fee or accrued interest payable to such Purchaser; fourthprovided, as the Parent Borrower may request however, that this clause (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article 5 or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Note or fee owing to such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect Purchaser; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.6, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.9;
(Conditions Precedent to each Extension of Creditv) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment release any Guarantor from its guaranty of any Loans obligations of the Issuer;
(vi) reduce or increase the proportion of Purchasers required for the Purchasers (or any subset thereof) to take any action hereunder or change the definition of the terms “Required Purchasers”, “Pro Rata Share” or “Pro Rata Outstandings”; or
(vii) amend Section 10.9 (Sharing of Payments) or this Section 10.1; and provided, further, that no amendment, waiver or consent shall affect the rights or duties under any Loan Document of, or Reimbursement Obligations owed any payment to, any SPV that has been granted an option pursuant to Section 10.2(f) unless in writing and signed by such Defaulting Lender until such time as all Loans SPV in addition to any signature otherwise required and funded (z) the consent of the Issuer shall not be required to change any order of priority set forth in Section 2.9 other than Section 2.9(a).
(b) Each waiver or consent under any Loan Document shall be effective only in the specific instance and unfunded participations for the specific purpose for which it was given. No notice to or demand on any Loan Party shall entitle any Loan Party to any notice or demand in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any paymentssame, prepayments similar or other amounts paid or payable circumstances. No failure on the part of any Secured Party to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderexercise, and each Lender irrevocably consents heretono delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
Appears in 1 contract
Samples: Bridge Note Purchase Agreement (Princeton Review Inc)
Amendments, Waivers, Etc. Any (a) No amendment or waiver of any provision of this Agreement or any other Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender, in addition to the Requisite Lenders, do any of the following:
(i) increase the Commitments of the Lenders or subject the Lenders to any additional obligations;
(ii) extend the scheduled final maturity of any Loan, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal or of the Commitments;
(iii) reduce the principal amount of any Loan (other than by the payment or prepayment thereof);
(iv) reduce the rate of interest on any Loan;
(v) postpone any scheduled date fixed for payment of principal, interest, fees such interest or fees;
(vi) change the aggregate Ratable Portions of the Lenders which shall be required for the Lenders or any of them to take any action hereunder;
(vii) release any of the Pledged Mill Creek Securities or substantially all of the Collateral except as provided in Section 8.4(b) or release any Guarantor from its obligations under the Guaranty except in connection with sale or other amounts received disposition permitted by the Administrative Agent for the account of such Defaulting Lender this Agreement (whether voluntary or mandatory, at maturity, permitted pursuant to Article 8 a waiver or consent of a transaction otherwise prohibited by this Agreement); or
(Events viii) amend this Section 13.1 or the definition of Defaultthe terms "Requisite Lenders" or "Ratable Portion";
(ix) amend or waive Section 2.8(a), Section 3.1(a), Section 3.1(b), Section 3.1(c) or otherwiseSection 9.1(f) or received by and provided further, (A) that any modification of the Administrative Agent from a Defaulting Lender application of payments to the Loans pursuant to Section 10.6 (Right 2.8 or the reduction of Set-offthe Credit Commitments pursuant to Section 2.4(b) shall be applied at such time require the consent of the Requisite Lenders and (B) that no amendment, waiver or times as may be determined by the Administrative Agent as follows: firstconsent shall, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender unless in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred writing and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined signed by the Administrative Agent and the Parent BorrowerSub-Agent in addition to the Lenders required above to take such action, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans affect the rights or duties of the Administrative Agent or the Sub-Agent under this Agreement and or the other Loan Documents or the provisions of Article XII, Section 13.3 or Section 13.4.
(yb) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations The Administrative Agent may, but shall have no obligation to, with respect to future Letters of Credit issued under this Agreement; sixth, to the payment written concurrence of any amounts owing 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 Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(c) In connection with any proposed amendment, modification, waiver or termination (a "Proposed Change") requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 13.1 being referred to as a "Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Consenting Lender’s breach of its obligations under this Agreement; seventh"), then, so long as no Default the Lender that is acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower's request, the Administrative Agent or Event of Default has occurred and an Eligible Assignee that is continuing, acceptable to the payment Administrative Agent shall have the right with the consent of any amounts owing the Requisite Lenders and in the Requisite Lenders' sole discretion (but shall have no obligation) to any Borrower purchase from such Non-Consenting Lender, and such Non-Consenting Lender hereby agrees that it shall, upon the Administrative Agent's request, sell and assign to the Lender that is acting as a result the Administrative Agent or such Eligible Assignee, all of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result the Commitments and Outstandings of such Defaulting Lender’s breach Non-Consenting Lender for an amount equal to the principal balance of its obligations all Loans held by the Non-Consenting Lender and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment and Acceptance.
(d) The Borrower and Guarantors shall enter into such amendments to this Agreement as may be reasonably requested by the Administrative Agent with respect to funding mechanics, loan administration provisions and other provisions (including defnitions of "Base Rate", "Eurodollar Base Rate" and other terms included in determining the interest rates under this Agreement; ) included in Article II to this Agreement with respect to Revolving Credit Loans to reflect the internal procedures and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment policies of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded Administrative Agent and its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretomembers.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Conseco Inc)
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan, any Note or any Reimbursement Obligation (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result payment of any judgment Reimbursement Obligation or principal on any Revolving Credit Loan or any Note without the consent of a court of competent jurisdiction obtained by such Borrower against such Defaulting each Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighthdirectly affected thereby, to such Defaulting Lender (vi) decrease or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Revolving Credit Loan, any Note or any Reimbursement Obligations in respect Obligation without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, (xi) change the sharing provisions among Lenders without the consent of each Lender directly affected thereby, or (xii) extend the expiration date of a Letter of Credit beyond the Commitment Termination Date without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent, the Issuer or the related Swing Line Lender under any Loan Document without the written consent of the Administrative Agent, the Issuer or the Swing Line Lender, as the case may be, (B) change the Letter of Credit Commitment, change the amount or the time of payment of the Letter of Credit Commissions, or change any other term or provision which relates to the Letter of Credit Commitment or the Letters of Credit were issued at a without the written consent of the Issuer, (C) change the Swing Line Commitment, change the amount or the time when of payment of the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied Swing Line Loans or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied interest thereon or change any other term or provision which relates to the Swing Line Commitment or the Swing Line Loans without the written consent of the Swing Line Lender or (D) change the amount or the time of payment of any Loans ofCompetitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or Reimbursement Obligations owed toconsent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, such Defaulting Lender until such time as the Lenders, the Administrative Agent and all future holders of the Loans and funded the Notes and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with Reimbursement Obligations. In the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.case
Appears in 1 contract
Samples: Credit Agreement (CVS Caremark Corp)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) same shall be applied at such time in writing and (x) in the case of an amendment to cure any ambiguity, omission, defect or times as may be determined by the Administrative Agent as follows: firstinconsistency, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined signed by the Administrative Agent and the Parent Borrower, (y) in the case of any such waiver or consent, signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and (z) in the case of any other amendment, by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to be held the Requisite Lenders (or the Administrative Agent with the consent thereof), do any of the following:
(i) waive any condition specified in a deposit account Section 3.1 (Conditions Precedent to Initial Loans and released pro rata in order Letters of Credit) or 3.2(b) (Conditions Precedent to (x) satisfy such Defaulting Lender’s potential future funding obligations Each Loan and Letter of Credit), except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to Initial Loans under this Agreement and Letters of Credit), subject to the provisions of Section 3.3 (yDeterminations of Initial Borrowing Conditions);
(ii) Cash Collateralize other than the Facility Increase (which shall require the consent of such Defaulting Lender’s Ratable Portion Lenders as are providing such Facility Increase), increase the Commitment of Letter of Credit Obligations such Lender or subject such Lender to any additional obligation; provided, however, that any such increase with respect to future Letters (A) the Term Loan Commitment shall require the consent of the Requisite Term Loan Lenders or (B) the Revolving Credit issued under this Agreement; sixthCommitment shall require the consent of the Requisite Revolving Credit Lenders;
(iii) extend the scheduled final maturity of any Loan owing to such Lender, to or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal or interest of any amounts such Loan or fees owing to such Lender (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result reduction of such Defaulting Lender’s breach of 's Commitment;
(iv) reduce, or release the Borrower from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest (other than any waiver of the imposition of default interest rate) on any Loan or Reimbursement Obligation outstanding and owing to such Lender or any fee payable hereunder to such Lender;
(vi) expressly subordinate any of the Secured Obligations or any Liens securing the Secured Obligations;
(vii) postpone any scheduled date fixed for payment of interest or fees owing to such Lender or waive any such payment (other than any waiver of the imposition of default interest rate);
(viii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(ix) release all or substantially all of the Collateral except as provided in respect of which Section 10.8(b) (Concerning the Collateral and the Collateral Documents) or release the Borrower from its payment obligation to such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made under this Agreement or the related Letters of Credit were issued at a time when Notes owing to such Lender (if any) or release any Guarantor from its obligations under the conditions set forth Guaranty except in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance connection with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments sale or other amounts paid disposition of a Guarantor (or payable all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a Defaulting Lender that are applied waiver or consent of a transaction otherwise prohibited by this Agreement); or
(or heldx) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this amend Section 2.21(a)(ii10.8(b) shall be deemed paid to (Concerning the Collateral and redirected by such Defaulting Lenderthe Collateral Documents), and each Lender irrevocably consents hereto.Section 11.8 (
Appears in 1 contract
Samples: Credit Agreement (Datapath Inc)
Amendments, Waivers, Etc. Any payment (a) Except as provided in the Intercreditor Agreement, no amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent signed by the Requisite Lenders (or by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right with the consent of Set-offthe Requisite Lenders) and the Borrower, and then any such waiver or consent shall be applied at such time effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or times as may be determined consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (or the Administrative Agent as follows: firstwith the consent thereof), to do any of the payment of any amounts owing by following:
(i) subject such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer additional obligation;
(ii) extend the scheduled final maturity of the Loan, or Swingline Lender hereunder; thirdwaive, to Cash Collateralize reduce or postpone any scheduled date fixed for the Issuers’ Fronting Exposure with respect payment or reduction of principal or interest of the Loan or fees owing to such Defaulting Lender in accordance with (it being understood that Section 2.20 2.6 (Cash CollateralMandatory Prepayments) does not provide for scheduled dates fixed for payment); fourth;
(iii) reduce, as or release the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan owing to such Lender (other than by the payment or Reimbursement Obligations prepayment thereof);
(iv) reduce the rate of interest on the Loan outstanding and owing to such Lender or any fee payable hereunder to such Lender or reduce, or limit the application of, the Prepayment Premium;
(v) postpone any scheduled date fixed for payment of interest or fees owing to such Lender or waive any such payment;
(vi) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(vii) release all or substantially all of the Collateral except as provided in respect of which Section 10.8(b) (Concerning the Collateral and the Collateral Documents) or release the Borrower from its payment obligation to such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made under this Agreement or the related Letters of Credit were issued at a time when Note owing to such Lender (if any) or release any Guarantor from its obligations under the conditions set forth Guaranty except in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance connection with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments sale or other amounts paid disposition of a Guarantor (or payable all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a Defaulting Lender that are applied waiver or consent of a transaction otherwise prohibited by this Agreement);
(or heldviii) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this amend Section 2.21(a)(ii2.9(g) shall be deemed paid to (Payments and redirected by such Defaulting LenderComputations), Section 10.8(b) (Concerning the Collateral and each Lender irrevocably consents hereto.the Collateral Documents), Section 11.7 (
Appears in 1 contract
Samples: Second Lien Credit Agreement (Tecumseh Products Co)
Amendments, Waivers, Etc. Any payment (a) Except as provided in the Intercreditor Agreement, no amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent signed by the Requisite Lenders (or by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right with the consent of Set-offthe Requisite Lenders ) and the Borrower, and then any such waiver or consent shall be applied at such time effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or times as may be determined consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (or the Administrative Agent as follows: firstwith the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1 (Conditions Precedent to the payment Loans), except with respect to a condition based upon another provision hereof, the waiver of any amounts owing by such Defaulting Lender which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to the Administrative Agent hereunder; secondLoans), subject to the payment on a pro rata basis provisions of any amounts owing by Section 3.2 (Determination of Borrowing Conditions);
(ii) increase the Term Loan Commitment of such Defaulting Lender or subject such Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize additional obligation;
(iii) extend the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding scheduled final maturity of any Loan in respect of which owing to such Defaulting Lender has failed to fund its portion thereof as required by this AgreementLender, as determined by the Administrative Agent; fifthor waive, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to reduce or postpone any scheduled date fixed for the payment or reduction of principal or interest of any amounts such Loan or fees owing to such Lender (it being understood that Section 2.7 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result reduction of such Defaulting Lender’s breach of 's Term Loan Commitment;
(iv) reduce, or release the Borrower from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan owing to such Lender (other than by the payment or Reimbursement Obligations prepayment thereof);
(v) reduce the rate of interest on any Loan outstanding and owing to such Lender or any fee payable hereunder to such Lender or reduce, or limit the application of, the Prepayment Premium;
(vi) postpone any scheduled date fixed for payment of interest or fees owing to such Lender or waive any such payment;
(vii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(viii) release all or substantially all of the Collateral except as provided in respect of which Section 10.8(b) (Concerning the Collateral and the Collateral Documents) or release the Borrower from its payment obligation to such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made under this Agreement or the related Letters of Credit were issued at a time when SECOND LIEN CREDIT AGREEMENT TECUMSEH PRODUCTS COMPANY Term Loan Notes owing to such Lender (if any) or release any Guarantor from its obligations under the conditions set forth Guaranty except in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance connection with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments sale or other amounts paid disposition of a Guarantor (or payable all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a Defaulting Lender that are applied waiver or consent of a transaction otherwise prohibited by this Agreement);
(or heldix) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this amend Section 2.21(a)(ii2.11(g) shall be deemed paid to (Payments and redirected by such Defaulting LenderComputations), Section 10.8(b) (Concerning the Collateral and each Lender irrevocably consents hereto.the Collateral Documents), Section 11.7 (
Appears in 1 contract
Samples: Second Lien Credit Agreement (Tecumseh Products Co)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by the Borrowers from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon, or reduce or forgive any fees or other Obligations (whether voluntary or mandatory, at maturity, pursuant other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Agent, the Arranger or the Issuing Lender pursuant to for their own account), (ii) except as contemplated by Section 10.6 (Right of Set-off) shall be applied at such time 2.21, extend the final scheduled maturity date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments), extend the time of payment of any Reimbursement Obligation or any interest thereon, extend the expiry date of any Letter of Credit beyond the Tranche 1 Maturity Date or Tranche 2 Maturity Date, as the case may be, or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunderAgent, the Arranger or the Issuing Lender for its own account); second, to the payment on a pro rata basis or (iii) increase any Commitment of any amounts owing by such Defaulting Lender to over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any Issuer condition precedent set forth in Section 4.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory reduction in the Commitments, if agreed to by the Required Lenders, Required Tranche 1 Lenders, Required Tranche 2 Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase); and
(b) unless agreed to by all of the funding Lenders, (i) release Everest Group from its obligations under Article XII (other than as may be otherwise specifically provided in this Agreement or in any other Credit Document), (ii) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any Loan in respect of which such Defaulting Lender has failed them to fund its portion thereof as required by this Agreementtake or approve, as determined by the Administrative Agent; fifth, if so determined by or direct the Administrative Agent and the Parent Borrowerto take, to be held in a deposit account and released pro rata in order to any action hereunder or under any other Credit Document (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in the definition of “Required Lenders”), (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, or (iv) change any provision of Section 4.2 2.15 or this Section 11.6; and
(Conditions Precedent c) unless agreed to each Extension by all of Credit) were satisfied or waivedthe Tranche 1 Lenders, such payment shall be applied solely to pay change the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to percentage set forth in the definition of “Required Tranche 1 Lenders” (it being applied to the payment understood that no consent of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or the Administrative Agent is required);
(d) unless agreed to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderall of the Tranche 2 Lenders, and each change the percentage set forth in the definition of “Required Tranche 2 Lenders” (it being understood that no consent of any other Lender irrevocably consents hereto.or the Administrative Agent is required);
Appears in 1 contract
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Borrower from, any provision of principalthis Agreement or any other Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), interestand then the same shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment or modification shall be effective without the written consent of the Credit Parties and no such amendment, modification, waiver, discharge, termination or consent shall:
(a) increase the Commitment of any Lender without the written consent of such Lender;
(b) reduce the principal amount of any Loan or the amount of any Reimbursement Obligation of any Borrower in respect of any L/C Disbursement or reduce the rate of interest thereon, or reduce any fees or other amounts received by payable hereunder, without the Administrative Agent for written consent of each Lender directly affected thereby;
(c) postpone the account scheduled date of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligations in respect for reimbursement of which any L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such Defaulting Lender has not fully funded its appropriate sharepayment, and (y) such Loans were made or postpone the related Letters scheduled date of expiration of any Commitment or any Letter of Credit were issued at a time when (other than an extension thereof pursuant to an “evergreen provision” or other similar automatic renewal provisions), without the conditions written consent of each Lender directly affected thereby;
(d) change or waive any provision of Section 2.14, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders, or this Section 11.5 without the consent of each Lender;
(e) release the Guarantor from its guarantee obligations under Article XII without the written consent of each Lender;
(f) change the percentage in the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent;
(g) amend, modify or waive any condition precedent to any Borrowing of Loans set forth in Section 4.2 (Conditions Precedent including in connection with any waiver of an existing Default or Event of Default) without the consent of the Required Lenders;
(h) unless agreed to each Extension of Credit) were satisfied by the Fronting Banks, the L/C Agent or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied Administrative Agent in addition to the payment Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the Fronting Banks, the L/C Agent or the Administrative Agent, as applicable, hereunder or under any Loans ofof the other Credit Documents. Notwithstanding anything to the contrary herein, or Reimbursement Obligations owed to, such no Defaulting Lender until shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such time as all Loans and funded and unfunded participations in Letters Lender may not be increased or extended without the consent of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement (Allied World Assurance Co Holdings LTD)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis provision of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, and no consent to any departure by any party herefrom, shall in any event be effective unless the same shall be in writing and signed by each Service Provider, the Senior Trustee and, in the event it is adversely affected thereby, the Subordinated Representative, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of the Security Trustee to exercise, and no delay in exercising, any right hereunder shall operate as determined a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. In executing and delivering any amendment or modification to this Agreement, the Security Trustee shall be entitled to (i) an Opinion of Counsel stating that such amendment is authorized and permitted pursuant to the Indenture and this Agreement and complies therewith and herewith and (ii) an Officer's Certificate stating that all conditions precedent to the execution, delivery and performance of such amendment have been satisfied in full. The Security Trustee may, but shall have no obligation to, execute and deliver any amendment or modification which would affect its duties, powers, rights, immunities or indemnities hereunder.
(b) Upon the execution and delivery by any Person of a security agreement supplement in substantially the Administrative Agent; fifthform of Exhibit C hereto, if so determined by (i) such Person shall be referred to as an "Additional Grantor" and shall be and become a Grantor hereunder, and each reference in this Agreement to "Grantor" shall also mean and be a reference to such Additional Grantor, (ii) the Administrative Agent annexes attached to each Security Trust Agreement Supplement shall be incorporated into and become a part of and supplement Schedule III and Schedule IV, and the Parent Borrower, Security Trustee may attach such annexes as supplements to such Schedules; and each reference to such Schedules shall mean and be held in a deposit account reference to such Schedules as supplemented pursuant hereto and released pro rata in order to (xiii) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans Additional Grantor shall be a Grantor for all purposes under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to shall be bound by the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoGrantors hereunder.
Appears in 1 contract
Samples: Security Trust Agreement (Morgan Stanley Aircraft Finance)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis provision of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined and no consent to any departure by any party from the provisions of this Agreement, shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent; fifth, if so determined by the Administrative Agent Issuer and the Parent BorrowerSecurity Trustee, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of the Security Trustee to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. In executing and delivering any amendment or modification to this Agreement, the Security Trustee shall be held in a deposit account and released pro rata in order entitled to (xi) satisfy an Opinion of Counsel stating that such Defaulting Lender’s potential future funding obligations with respect amendment is authorized and permitted pursuant to Loans under the Indenture and this Agreement and that such amendment or modification complies with the terms thereof and hereof and (yii) Cash Collateralize such Defaulting Lenderan Officer’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, Certificate stating that all conditions precedent to the payment execution, delivery and performance of such amendment have been satisfied in full. The foregoing provisions shall not apply to the execution and delivery of any amounts owing supplement hereto as provided for herein (including, without limitation, any Grantor Supplement or Collateral Supplement) to the Non-Defaulting Lenders extent that any such supplement does not purport to amend, modify or waive any provision of this Agreement other than as contemplated by clauses (b) and (c) below. The Security Trustee and the Issuers as a result of Operating Bank may, but shall have no obligation to, execute and deliver any judgment amendment or modification which would affect its duties, powers, rights, immunities or indemnities hereunder.
(b) Upon the execution and delivery by an Additional Grantor of a court Grantor Supplement, Annexes I, II, III, IV and V attached to such Grantor Supplement shall be incorporated into, become a part of competent jurisdiction obtained and supplement Section 2.01 and Schedules I, II, III, IV and V, respectively, and the Security Trustee may attach such Annexes as supplements to such Schedules; and each reference to such Schedules shall be a reference to such Schedules as so supplemented.
(c) Upon the execution and delivery by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment Grantor of a court Collateral Supplement, Annexes I, II and V attached to such Collateral Supplement shall be incorporated into, become a part of competent jurisdiction obtained by and supplement Schedules I, II and V, respectively, and the Security Trustee may attach #4821-3610-4420v6 such Borrower against Annexes as supplements to such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this AgreementSchedules; and eighth, each reference to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment Schedules shall be applied solely a reference to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time Schedules as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoso supplemented.
Appears in 1 contract
Samples: Security Trust Agreement (Willis Lease Finance Corp)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Borrower from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Borrowers and the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to in writing by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or the amount of any Reimbursement Obligation, (whether voluntary ii) reduce the rate of or mandatoryforgive any interest thereon (provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), at maturity, pursuant (iii) reduce or forgive any fees hereunder (other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 Agent, the Fronting Bank or any Arranger for its own account), (Right of Set-offiv) shall be applied at such time extend the final scheduled maturity date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan (including the Commitment Termination Date), (v) extend the expiry date of any Letter of Credit beyond the Final Maturity Date, or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunder; secondAgent, to the payment on a pro rata basis Fronting Bank or any Arranger for its own account), or (vi) increase any Commitment of any amounts owing such Lender over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any condition precedent set forth in Section 3.2 or of any Default or Event of Default, if agreed to by such Defaulting Lender to any Issuer the Required Lenders, or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure all Xxxxxxx (as may be required hereunder with respect to such Defaulting Lender waiver), shall not constitute such an increase);
(b) unless agreed to by all of the Lenders, (i) change the definition of “Required Lenders” or 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, (ii) change or waive any provision of Section 2.13(e), (iii) change or waive any provision of Section 2.16 or any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders in accordance with a manner that would alter the pro rata sharing of payments required thereby, or (iv) change any provision of this Section 2.20 10.5;
(Cash Collateral); fourthc) unless agreed to by the L/C Agent, the Fronting Bank, the Swingline Lender, the Administrative Agent or the Sustainability Structuring Agent in addition to the Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the L/C Agent, the Fronting Banks, the Swingline Lender, the Administrative Agent or the Sustainability Structuring Agent, as applicable, hereunder or under any of the Parent Borrower other Credit Documents; and and provided further that the Fee Letter may request (so long as no Default only be amended or Event of Default has occurred modified, and is continuing)any rights thereunder waived, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined a writing signed by the Administrative Agent; fifthparties thereto, if so determined by and provided further, that the Administrative Agent and the Parent BorrowerBorrowers may, without the consent of any Lender, enter into amendments or modifications to be held in a deposit account and released pro rata this Agreement or any of the other Credit Documents or enter into additional Credit Documents as the Administrative Agent reasonably deems appropriate in order to implement any Replacement Rate or otherwise effectuate the terms of Section 2.17(f) in accordance with the terms of Section 2.17(f). Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Xxxxxx sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein. Notwithstanding anything to the contrary in this Section 10.5, if the Administrative Agent and the Company shall have jointly identified (each in its sole discretion) an obvious error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in writing by the Required Lenders within five Business Days following the posting of such amendment to the Lenders. Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and without further consent of any Lender (but with the consent of the Borrowers and the Administrative Agent), to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under amend and restate this Agreement if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (y) Cash Collateralize as so amended and restated), the Commitments of such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall have been paid in full all principal, interest and other amounts owing to future Letters of Credit issued it or accrued for its account under this Agreement; sixth, . Notwithstanding anything to the payment contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (A) the Commitment of such Lender may not be increased or extended without the consent of such Lender, and (B) any amounts owing to amendment, waiver, or consent hereunder which requires the Non-Defaulting consent of all Lenders or the Issuers as a result of each affected Lender that by its terms disproportionately and adversely affects any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result relative to other affected Lenders shall require the consent of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement (Unum Group)
Amendments, Waivers, Etc. Any payment of principalNo amendment, interestmodification, fees waiver or other amounts received discharge or termination of, or consent to any departure by the Administrative Borrower from, any provision of this Agreement or any other Loan Document, shall be effective unless in a writing signed by the Required Lenders (or by the Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Agent for its appropriate shareown account), and or (yii) such Loans were made extend the Maturity Date or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any other date fixed for the payment of any Loans ofprincipal of or interest on any Loan (other than additional interest payable under Section 2.8(b) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Agent for its own account) or Reimbursement Obligations owed toany other Obligations;
(b) unless agreed to by all of the Lenders, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any paymentsincrease or extend the Commitment of any Lender (it being understood that a waiver of any Event of Default, prepayments if agreed to by the requisite Lenders hereunder, shall not constitute such an increase or extension), (ii) change the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Agent to take or approve, any action hereunder (including as set forth in the definition of "Required Lenders"), (iii) except as may be otherwise specifically provided in this Agreement or in any other amounts paid Loan Document, release all or payable to a Defaulting Lender that are applied substantially all of the Collateral or release any guarantor from the Subsidiaries Guaranty, or (iv) change any provision of Section 2.15 or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii9.6; and
(c) shall unless agreed to by the Agent in addition to the Lenders required as provided hereinabove to take such action, affect the rights or obligations of the Agent hereunder or under any of the other Loan Documents; and provided further that the Fee Letter and any Hedge Agreement to which any Lender is a party may be deemed paid to and redirected by such Defaulting Lenderamended or modified, and each Lender irrevocably consents heretoany rights thereunder waived, in a writing signed by the parties thereto.
Appears in 1 contract
Samples: Credit Agreement (Front Royal Inc)
Amendments, Waivers, Etc. Any (1) Except to the extent expressly provided in any Loan Document and subject to Section 12.2(2), no amendment or waiver of any provision of any Loan Document (other than any Secured Hedge Agreement), nor consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed (or, in the case of the Security Documents, consented to) by Administrative Agent and the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
(2) No amendment or waiver of any provision of any Loan Document (other than any Secured Hedge Agreement), shall, without the consent of each Lender: (i) increase the principal amount of the Loans; (ii) add any additional facilities to the Loan Agreement, (iii) reduce, discount or otherwise adjust the principal amount of the Loans, reduce the interest rate thereon, or reduce or waive any payment of principal, interestinterest or fees under any Loan Document; (iv) postpone or extend any stated Payment Date for principal of or interest on the Loans payable to such Lender, fees (v) postpone or extend the Maturity Date (other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender than pursuant to Section 10.6 2.5), (Right vi) release or forgive any Borrower Party from any of Set-offits Obligations under the Loan Documents (except as provided in Sections 2.6 and 9.29); (vii) shall be applied at such time release or times subordinate in whole or in part any material portion of the collateral given as may be determined by security for the Administrative Agent as follows: first, Loans or agree to the replacement or substitution of collateral (except as provided in Section 2.6), (viii) accept any payment from any Borrower Party under any Loan Document other than in cash in U.S. dollars, (ix) modify Sections 2.8(2) or 2.8(7)(b), (x) accept collateral or guaranties in respect of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment Loans other than on a pro rata basis basis, (xi) approve the incurrence of any Indebtedness secured by any Lien on any Property (except as expressly permitted in this Agreement), (xii) modify any of the provisions of this Section 12.2 or Section 14.8, the definition of “Required Lenders”, the definition of “Supermajority Lenders” or any other provision in the Loan Documents specifying the number or percentage of the Lenders required to waive, amend or modify any rights thereunder or make any agreement, request, direction, instruction or determination or grant any consent thereunder, (xiii) modify Sections 7.8, 9.18, 9.1(14) or the last sentence of Section 12.23(2)(e) or (xiv) modify the definition of “Partial Release Factor” or “Partial Release Price” or the definitions referenced, directly or indirectly, therein or (xv) waive any provision of the Loan Documents requiring delivery of flood hazard determination forms, flood insurance notices or evidence of Flood Insurance. Notwithstanding the foregoing, no amendment or waiver of Section 10.5(b) or of the definition of “Change of Control” shall be effective without the consent of the Supermajority Lenders.
(3) Administrative Agent will not, without the consent of the Supermajority Lenders: (i) declare the entire unpaid principal amount of the Loans to be immediately due and payable pursuant to Section 11.2, or (ii) exercise any rights and remedies under the Loan Documents and at law or in equity, including power of sale or judicial foreclosure against all or any portion of the collateral.
(4) In the event that any Lender (a “Non‑Consenting Lender”) shall refuse to consent to a waiver or amendment to, or a departure from, the provisions of any Loan Document which requires the consent of all Lenders and that has been consented to by Administrative Agent, Arrangers and the Required Lenders, then Borrowers, upon three (3) Business Days’ notice (the “Consent Request Date”), may require that such Non‑Consenting Lender assign all of its right, title and interest under this Agreement and such Non‑Consenting Lender’s Note to a Proposed Lender identified by Borrower that is reasonably satisfactory to Administrative Agent, provided that (i) as of such Consent Request Date, no Event of Default shall have occurred and be continuing, (ii) as of the date of Borrowers’ written demand to replace such Non‑Consenting Lender, no Event of Default shall have occurred and be continuing other than an Event of Default that resulted solely from the subject matter of the waiver or amendment for which such consent was being solicited from Lenders by Administrative Agent, and (iii) such Proposed Lender agrees to assume all of the obligations of such Non‑Consenting Lender hereunder and to purchase all of such Non‑Consenting Lender’s Loans for consideration equal to the aggregate outstanding principal amount of such Non‑Consenting Lender’s Loans, together with interest thereon to the date of such purchase (to the extent not paid by Borrowers), and satisfactory arrangements are made for payment to such Non‑Consenting Lender of all other amounts owing accrued and payable hereunder to such Non‑Consenting Lender as of the date of such transfer (including any fees accrued hereunder and any Breakage Costs that would be payable under Section 2.9(5) as if all of such Non‑Consenting Lender’s Loans were being prepaid in full on such date). Subject to the provisions of Section 12.23(2), such Proposed Lender shall be a “Lender” for all purposes hereunder. Without prejudice to the survival of any other agreement of Borrowers hereunder, the agreements of Borrowers contained in Sections 2.9(1), 2.9(6), 9.12 and 12.5 shall survive for the benefit of such Non‑Consenting Lender with respect to the time prior to such replacement. A Non‑Consenting Lender shall not be required to make any such assignment if, prior thereto, as a result of a waiver by such Non‑Consenting Lender or otherwise, the circumstances entitling Borrowers to require such assignment cease to apply. Each Non‑Consenting Lender required to make an assignment pursuant to this Section 12.2(4) shall promptly execute and deliver an Assignment and Acceptance with the applicable Proposed Lender. If such Non‑Consenting Lender does not execute and deliver to Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement within a period of time deemed reasonable by Administrative Agent after the later of (A) the date on which the Proposed Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (B) the date on such Non‑Consenting Lender receives all payments described above, then such Non‑Consenting Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and Borrowers shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Non‑Consenting Lender.
(5) Notwithstanding anything to contrary contained in this Agreement, (a) any modification or supplement of Article 14, or of any of the rights or duties of Administrative Agent hereunder, shall require the consent of Administrative Agent, and (b) during such period as a Lender is a Defaulting Lender to any Issuer or Swingline Lender hereunder; thirdLender, to Cash Collateralize the Issuers’ Fronting Exposure with fullest extent permitted by applicable law, such Lender will not be entitled to vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders, Supermajority Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definitions of “Required Lenders” and "Supermajority Lenders" will automatically be deemed modified accordingly for the duration of such period, provided that any such amendment or waiver that would (i) increase or extend the term of the Commitment of such Defaulting Lender, (ii) extend the date fixed for the payment of principal or interest owing to such Defaulting Lender in accordance with Section 2.20 hereunder, (Cash Collateral); fourth, as iii) reduce the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding principal amount of any Loan in respect of which such Defaulting Lender has failed obligation owing to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and , (yiv) Cash Collateralize such Defaulting Lender’s Ratable Portion reduce the amount of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result rate or amount of interest on any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts amount owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which fee payable to such Defaulting Lender has not fully funded its appropriate sharehereunder, or (v) alter the terms of this proviso, will require the consent of such Defaulting Lender.
(6) The Lenders hereby empower and (y) such Loans were made authorize Administrative Agent to execute and deliver to Borrowers on their behalf any agreements, documents or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment instruments as shall be applied solely necessary or appropriate to pay effect any releases of Property, Borrowers or any Guarantor which shall be permitted by the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment terms hereof or of any Loans ofother Loan Document (including, without limitation, in connection with any asset sale permitted hereunder or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters connection with any release of Credit and Swingline Loans are held by the Lenders pro rata a Guarantor made in accordance with the Revolving Credit Commitments without giving effect to clause (iLoan Documents) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied which shall otherwise have been approved by the Required Lenders (or held) to pay amounts owed by a Defaulting each Lender or the Supermajority Lenders, as required hereunder) in writing. In addition, the Lenders authorize Administrative Agent to post cash collateral release any Guarantor or Borrower from its obligations under the Loan Documents if such Person is no longer required to be a Guarantor or Borrower hereunder or if such Person is sold, transferred or assigned in accordance with and to the extent permitted by the terms of this Agreement. Upon the request of Administrative Agent at any time, the Required Lenders (or each Lender or the Supermajority Lenders, as applicable) will confirm in writing Administrative Agent’s authority to release or subordinate its interest in particular types or items of Property, or to release any Guarantor from its obligations under the Loan Documents pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderthe foregoing. In each case as specified hereto, Administrative Agent (and each Lender irrevocably consents heretohereby authorizes Administrative Agent to), at Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such portion of the Property from the security interest granted under the Loan Documents or to subordinate its interest therein, or to release a Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower may, from time to time, enter into written amendments, supplements or modifications of the Loan Documents (which, for the avoidance of doubt, shall require the prior written consent of the Borrower) and, with the written consent of the Required Lenders and the Borrower, the Administrative Agent on behalf of the Lenders may execute and deliver to be held in any such parties a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, written instrument waiving or consenting to the departure from, on such terms and conditions as the Administrative Agent may specify in such instrument, any of the requirements of the Loan Documents or any Default and its consequences, provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the Commitment Amount of any Lender without the consent of such Lender (provided that no waiver of a Default shall be deemed to constitute such an increase), (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Revolving Credit Loan or any Note (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount of, or extend the time of payment of, any payment of any amounts owing to principal on any Revolving Credit Loan or any Note without the Non-Defaulting Lenders consent of each Lender directly affected thereby, (vi) decrease or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Revolving Credit Loan or Reimbursement Obligations any Note without the consent of each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, or (xi) change the sharing provisions among Lenders without the consent of each Lender directly affected thereby. Notwithstanding the foregoing, in respect addition to the receipt of which the prior written consents of the Borrower and the Required Lenders, no such Defaulting Lender has not fully funded its appropriate shareamendment, and supplement, modification, waiver or consent shall (yA) such Loans were made amend, modify or waive any provision of Section 10 or otherwise change any of the rights or obligations of the Administrative Agent under any Loan Document without the written consent of the Administrative Agent or (B) change the amount or the related Letters time of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Competitive Bid Loan or interest thereon without the written consent of the Lender holding such Competitive Bid Loan. Any such amendment, supplement, modification, waiver or consent shall apply equally to each of the Lenders and shall be binding upon the parties to the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans ofand the Notes. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default waived shall not extend to any subsequent or other Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoimpair any right consequent thereon.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment of principal, interest, fees consent or other amounts received approval required or permitted by this Credit Agreement to be given by the Administrative Agent for Banks may be given, and any term of this Credit Agreement, the account of such Defaulting Lender (whether voluntary other Loan Documents or mandatoryany other instrument related hereto or mentioned herein may be amended, at maturity, pursuant to Article 8 (Events of Default) and the performance or otherwise) or received observance by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right Borrower or any of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment its Subsidiaries of any amounts owing by terms of this Credit Agreement, the other Loan Documents or such Defaulting Lender to other instrument or the Administrative Agent hereunder; second, to the payment on a pro rata basis continuance of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred may be waived (either generally or in a particular instance and is continuing)either retroactively or prospectively) with, but only with, the written consent of the Borrower and the written consent of the Majority Banks. Notwithstanding the foregoing, the rate of interest on the Notes (other than interest accruing pursuant to Section 5.10.2 following the funding effective date of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined waiver by the Administrative Agent; fifth, if so determined by Majority Banks of the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred relating thereto) or the amount of the Commitment Fee or Letter of Credit Fees may not be decreased without the written consent of each Bank affected thereby; the amount of the Commitments may not be increased without the written consent of the Borrower and is continuingof each Bank affected thereby; the Facility A Maturity Date and the Facility B Maturity Date may not be postponed without the written consent of each Bank affected thereby; this Section 26 and the definition of Majority Banks may not be amended, to without the payment written consent of all of the Banks; no Guarantor and no substantial portion of any amounts owing collateral security for the Obligations may be released, in each case without the written consent of all of the Banks; and the amount of the Agent's Fee or any Letter of Credit Fees payable for the Agent's account and Section 15 may not be amended without the written consent of the Agent. No waiver shall extend to or affect any Borrower obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the part of the Agent or any Bank in exercising any right shall operate as a result of any judgment of a court of competent jurisdiction obtained by such waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, shall entitle the Borrower to such Defaulting Lender other or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans further notice or Reimbursement Obligations demand in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments similar or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretocircumstances.
Appears in 1 contract
Samples: Revolving Credit Agreement (Rollins Truck Leasing Corp)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by the Borrowers from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (provided that only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates), or reduce or forgive any fees or other Obligations (other than fees payable to the Administrative Agent, the Arrangers or any Fronting Lender for their own account); (ii) except as contemplated by Section 2.21, extend the final scheduled maturity date or any other scheduled date for the payment of any principal of or interest on any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments), extend the time of payment of any Reimbursement Obligation or any interest thereon, extend the expiry date of any Letter of Credit beyond the first anniversary of the Tranche 1 Termination Date or Tranche 2 Termination Date, as the case may be, or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent, the Arrangers or any Fronting Lender for its own account); or (iii) increase any Commitment of any such Lender over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any condition precedent set forth in Section 4.2 or of any Default or Event of Default, if agreed to by the Required Lenders, Required Tranche 1 Lenders or Required Tranche 2 Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase);
(b) unless agreed to by all of the Lenders, (i) release Everest Group from its obligations under Article XII (other than as may be otherwise specifically provided in this Agreement or in any other Credit Document), (ii) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of "Required Lenders"), (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, or (iv) change any provision of Section 2.15 or this Section 11.6;
(c) unless agreed to by all of the Tranche 1 Lenders, change the percentage set forth in the definition of "Required Tranche 1 Lenders" (it being understood that no consent of any other Lender or the Administrative Agent is required);
(d) unless agreed to by all of the Tranche 2 Lenders, change the percentage set forth in the definition of "Required Tranche 2 Lenders" (it being understood that no consent of any other Lender or the Administrative Agent is required); 8470562v6 24740.00061
(e) unless agreed to by the Required Tranche 1 Lenders, (i) except for any such changes to which Section 11.6(a) applies, change any provision of Article III that relates to Tranche 1 Letters of Credit, or (ii) amend, modify or waive any condition precedent to any Borrowing of Loans or Reimbursement Obligations in respect issuance of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters a Tranche 1 Letter of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent including in connection with any waiver of an existing Default or Event of Default);
(f) unless agreed to each Extension by the Required Tranche 2 Lenders, (i) except for any such changes to which Section 11.6(a) applies, change any provision of Article III that relates to Tranche 2 Letters of Credit, or (ii) were satisfied amend, modify or waive any condition precedent to any issuance of a Tranche 2 Letter of Credit set forth in Section 4.2 (including in connection with any waiver of an existing Default or Event of Default);
(g) unless agreed to by the Required Tranche 1 Lenders and the Required Tranche 2 Lenders, amend or modify the definition of "Collateral Value", "Eligible Collateral" or Schedule 1.1(b);
(h) unless agreed to by all of the Tranche 2 Lenders and, if any Tranche 1 Letters of Credit are outstanding as Secured Letters of Credit at such time, all of the Tranche 1 Lenders (except, in any case, as may be otherwise specifically provided in this Agreement or in any other Credit Document), release all or substantially all of the Collateral (except as may be otherwise specifically provided in this Agreement or in any other Credit Document); and
(i) unless agreed to by the L/C Agent, each Fronting Lender or the Administrative Agent in addition to the Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the L/C Agent, such Fronting Lender or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents (including any amendment or modification to the definition of "Collateral Value", "Eligible Collateral" or Schedule 1.1(b)); and provided further that any Fee Letter may be amended or modified, and any rights thereunder waived, such payment shall be applied solely to pay in a writing signed by the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied parties thereto. Notwithstanding anything to the payment contrary herein, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Loans ofDefaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or Reimbursement Obligations owed to, modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender until and (ii) if the Administrative Agent and the Borrowers shall have jointly identified (each in its sole discretion) an obvious error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents, then the Administrative Agent and the applicable Borrowers shall be permitted to amend such time as all Loans provision and funded and unfunded participations such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in Letters of Credit and Swingline Loans are held writing by the Required Lenders pro rata in accordance with within five Business Days following the Revolving Credit Commitments without giving effect posting of such amendment to clause (i) abovethe Lenders. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.8470562v6 24740.00061
Appears in 1 contract
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Control Agreements and the Secured Hedging Agreements) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower, (2) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (3) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2) or (3) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to be held any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Revolving Credit Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Revolving Loan owing to such Lender or (B) any fee or accrued interest payable to such Lender; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting increase or (y) any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Revolving Loan or fee owing to such Lender or for the reduction of such Lender’s potential future funding obligations with respect Revolving Credit Commitment; provided, however, that this clause (iv) does not apply to Loans any change to mandatory prepayments, including those required under Section 2.8, or to the application of any payment, including as set forth in Section 2.12;
(v) except as provided in Section 10.10, release all or substantially all of the Collateral or any Guarantor from its guaranty of any Obligation of the Borrower;
(vi) reduce or increase the proportion of Lenders required for the Lenders (or any subset thereof) to take any action hereunder or change the definition of the terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or
(vii) amend Section 10.10 (Release of Collateral or Guarantor), Section 11.9 (Sharing of Payments) or this Agreement Section 11.1; PARLUX LTD. and provided, further, that (x) no amendment, waiver or consent shall affect the rights or duties under any Loan Document of, or any payment to, the Administrative Agent (or otherwise modify any provision of Article X or the application thereof) or any SPV that has been granted an option pursuant to Section 11.2(f) unless in writing and signed by the Administrative Agent or, as the case may be, such SPV in addition to any signature otherwise required and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment consent of the principal amount Borrower shall not be required to change any order of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions priority set forth in Section 4.2 2.12. No amendment, modification or waiver of this Agreement or any Loan Document altering the ratable treatment of Obligations arising under Secured Hedging Agreement resulting in such Obligations being junior in right of payment to principal of the Revolving Loans or resulting in Obligations owing to any Secured Hedging Counterparty being unsecured (Conditions Precedent to each Extension other than releases of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata Liens in accordance with the Revolving Credit Commitments terms hereof), in each case in a manner adverse to any Secured Hedging Counterparty, shall be effective without giving effect the written consent of such Secured Hedging Counterparty or, in the case of a Secured Hedging Agreement provided or arranged by the Administrative Agent or an Affiliate thereof, the Administrative Agent.
(b) Each waiver or consent under any Loan Document shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to clause (i) above. Any paymentsor demand on any Loan Party shall entitle any Loan Party to any notice or demand in the same, prepayments similar or other amounts paid or payable circumstances. No failure on the part of any Secured Party to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderexercise, and each Lender irrevocably consents heretono delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Required Lenders) and, in the case of any amendment, by the Borrower or Holdings, and then any such waiver or consent shall be effective only in the specific instance and for the account of such Defaulting specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from with the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit) or 3.2(b) (Conditions Precedent to Each Loan and Letter of Credit), except with respect to a Defaulting condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit), subject to the provisions of Section 3.3 (Determinations of Initial Borrowing Conditions);
(ii) increase the Revolving Credit Commitment of such Lender or subject such Lender to any additional obligation;
(iii) extend the scheduled final maturity of any Loan owing to such Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal of any such Loan (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the reduction of such Lender's Revolving Credit Commitment other than pursuant to Section 10.6 2.9(a);
(Right of Set-offiv) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of reduce the principal amount of any Loans Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement Obligations outstanding to such Lender or any fee payable hereunder to such Lender;
(vi) postpone any scheduled date fixed for payment of such interest or fees owing to such Lender;
(vii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(viii) release all or substantially all of the Collateral except as provided in respect Section 10.7(b) (Concerning the Collateral and the Collateral Documents) or release the Borrower from its payment obligation to such Lender under this Agreement or the Revolving Credit Notes owing to such Lender (if any) or release any Guarantor from its obligations under the Guaranty except in connection with sale or other disposition of which a Subsidiary Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement);
(ix) amend Section 10.7(b) (Concerning the Collateral and the Collateral Documents), this Section 11.1 or either definition of the terms "Requisite Lenders" or "Ratable Portion"; or
(x) increase the Advance Rate above the rates set forth in the definition thereof; and provided, further, that (x) no amendment, waiver or consent shall, unless in writing and signed by any Special Purpose Vehicle that has been granted an option pursuant to Section 11.2(f) (Assignments and Participations), affect the grant or nature of such Defaulting Lender has not fully funded its appropriate share, option or the right or duties of such Special Purpose Vehicle hereunder and (y) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such Loans were made action, affect the rights or duties of the Administrative Agent under this Agreement or the related Letters other Loan Documents.
(b) The Administrative Agent may, but shall have no obligation to, with the written concurrence of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension any Lender, execute amendments, modifications, waivers or consents on behalf of Credit) were satisfied such Lender. Any waiver or waived, such payment consent shall be applied solely effective only in the specific instance and for the specific purpose for which it was given. No notice to pay or demand on the Loans ofBorrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification, waiver or termination (a "Proposed Change") requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 11.1 being referred to as a "Non-Consenting Lender"), then, so long as the Lender acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower's request, the Administrative Agent or an Eligible Assignee acceptable to the Administrative Agent shall have the right with the Administrative Agent's consent and in the Administrative Agent's sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, and Reimbursement Obligations owed tosuch Non-Consenting Lender agrees that it shall, upon the Administrative Agent's request, sell and assign to the Lender acting as the Administrative Agent or such Eligible Assignee, all of the Revolving Credit Commitments, and Revolving Credit Outstandings of such Non-Defaulting Lenders on a pro rata basis prior to being applied Consenting Lender for an amount equal to the payment principal balance of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance Non-Consenting Lender and all accrued interest and fees with respect thereto through the Revolving Credit Commitments without giving effect date of sale, such purchase and sale to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral be consummated pursuant to this Section 2.21(a)(ii) shall be deemed paid to an executed Assignment and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoAcceptance.
Appears in 1 contract
Samples: Credit Agreement (Aviall Inc)
Amendments, Waivers, Etc. Any payment of principalthe Participation Agreement or any Guarantee. Without the consent of a Majority in Interest of Noteholders, interestthe respective parties to the Participation Agreement may not modify, fees amend or other amounts received by the Administrative Agent supplement such agreement, or give any consent, waiver, authorization or approval thereunder, for the account purpose of such Defaulting Lender (whether voluntary adding any provisions to or mandatorychanging in any manner or eliminating any of the provisions thereof or of modifying in any manner the rights of the respective parties thereunder; provided that, at maturitywithout the consent of Loan Trustee, pursuant to Article 8 (Events of Default) any Noteholder, any other Indenture Indemnitee, any Related Indenture Indemnitee or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as Company Guarantee Beneficiary, the Participation Agreement and/or any Guarantee may be determined by modified, amended or supplemented in order (i) to cure any defect or inconsistency therein or to cure any ambiguity or correct any mistake, (ii) to amend, modify or supplement any provision thereof or make any other provision with respect to matters or questions arising thereunder or under this Indenture (provided that the Administrative Agent as follows: firstmaking of any such other provision shall not materially adversely affect the interests of Noteholders), (iii) to make any other change, or reflect any other matter, of the kind referred to in clauses (i) through (xiv) of Section 9.01 or (iv) in the case of any Guarantee (other than the Company Guarantee), to add Company’s payment obligations under Series B Equipment Notes (and Related Series B Equipment Notes), if issued after the Closing Date, or Additional Series Equipment Notes (and Related Additional Series Equipment Notes), if any, to the payment “Guaranteed Obligations” under such Guarantee. Notwithstanding the foregoing, without the consent of any amounts owing by such Defaulting Lender Liquidity Provider, Company shall not enter into any amendment, waiver or modification of or supplement or consent to the Administrative Agent hereunder; secondParticipation Agreement which shall reduce, to the payment on a pro rata basis of modify or amend any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender indemnities in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result favor of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoLiquidity Provider contained therein.
Appears in 1 contract
Samples: Indenture and Security Agreement (Alaska Air Group, Inc.)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders); provided, however, that any amendment, waiver or consent that would constitute a Credit Impairment Event shall become effective only if approved in writing by the Supermajority Lenders (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting with the consent of the Supermajority Lenders); provided further, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender pursuant directly affected thereby (other than any Non-Funding Lender), in addition to Section 10.6 the consent of the Requisite Lenders or Supermajority Lenders, as applicable (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to with the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuingconsent thereof), to do any of the funding following:
(i) increase the Commitment of such Lender;
(ii) extend the scheduled final maturity, or otherwise extend the maturity, of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, except pursuant to the payment Fifteen Month Facility Extension Option) owing to such Lender, extend the expiration date of any amounts Commitment hereunder, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal or interest of any such Loan or fees owing to such Lender (it being understood that Section 2.8 does not provide for scheduled dates fixed for payment and no waiver of default rate interest constitutes a waiver, reduction or postponement for purposes of this clause (ii));
(iii) reduce, or release the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of Borrower from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(iv) reduce the rate of interest on any Loan or Reimbursement Obligation outstanding and owing to such Lender or any fee payable hereunder to such Lender (it being understood that the rescission of any election to impose (or waiver of any imposition of) default rate interest shall not be deemed to be a reduction to the rate of interest on any Loan or Reimbursement Obligation);
(v) except as otherwise permitted by Section 2.19, expressly subordinate any of the Obligations or any Liens securing the Obligations;
(vi) postpone any scheduled date fixed for payment of interest or fees owing to such Lender or waive any such payment;
(vii) release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their obligations under Article XI;
(viii) amend this Section 13.1 or either definition of the terms “Credit Impairment Event”, “Requisite Lenders” or “Supermajority Lenders”, “Revolving Percentage”, “Term Percentage”, “Aggregate Exposure Percentage” or “Majority Facility Lenders”; and provided, further, that (x) no amendment or consent which shall increase the aggregate Commitments of all Lenders hereunder above the Commitments in respect of which such Defaulting Lender has not fully funded its appropriate shareeffect on the Closing Date shall be effective unless in writing and signed by each Lender, and (y) such no amendment or consent which shall increase the aggregate principal amount of the Term Loans were made or the related Letters Term Commitments of Credit were issued at a time when all Term Lenders hereunder above the conditions set forth Term Commitments in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment effect on the Closing Date shall be applied solely effective unless in writing and signed by the Majority Facility Lenders for the Term Facility or (z) any amendment, waiver or consent which changes the definition of “Borrowing Base” or any defined terms used in such definition shall be effective if in writing and signed by (and only by) the Majority Facility Lenders for the Revolving Facility; provided, further, that the Administrative Agent may, with the consent of the Borrower, amend, modify or supplement this Agreement or any other Loan Document to pay cure any typographical error, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment rights of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoany Issuer.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Guarantee Agreement (Us Concrete Inc)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and, in the case of any amendment, by the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (or the Administrative Agent with the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1, 3.2 or 3.3 except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 or 3.2, subject to the provisions of Section 3.3;
(ii) increase the Revolving Credit Commitment of such Defaulting Lender or subject such Lender to any additional obligation;
(iii) extend the scheduled final maturity of any Loan owing to such Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal or interest of any such Loan or fees owing to such Lender (whether voluntary it being understood that Section 2.9 does not provide for scheduled dates fixed for payment) or mandatoryfor the reduction of such Lender's Revolving Credit Commitment;
(iv) reduce, at maturityor release the Borrower from its obligations to repay, the principal amount of any Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement Obligations outstanding and owing to such Lender or any fee payable hereunder to such Lender;
(vi) expressly subordinate any of the Secured Obligations or any Liens securing the Secured Obligations;
(vii) postpone any scheduled date fixed for payment of such interest or fees owing to such Lender or waive any such payment;
(viii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(ix) release all or substantially all of the Collateral except as provided in Section 12.8(b) or release the Borrower from its payment obligation to such Lender under this Agreement or the Revolving Credit Notes owing to such Lender (if any) or release any Subsidiary Guarantor from its obligations under the Guaranty except 113 in connection with the sale or other disposition of a Subsidiary Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to Article 8 a waiver or consent of a transaction otherwise prohibited by this Agreement);
(Events x) increase any of Defaultthe percentages set forth in the definition of "Borrowing Base" above the maximum percentages stated in such definition on the date hereof; or
(xi) amend Section 12.8(b), Section 13.7, this Section 13.1 or otherwiseeither definition of the terms "Requisite Lenders" or "Ratable Portion"; and provided, further, that (x) no amendment, waiver or received consent shall, unless in writing and signed by any Special Purpose Vehicle that has been granted an option pursuant to Section 13.2(f) (Assignments and Participations), affect the grant or nature of such option or the right or duties of such Special Purpose Vehicle hereunder, (y) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent from a Defaulting Lender pursuant in addition to Section 10.6 (Right the Lenders required above to take such action, affect the rights or duties of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: firstunder this Agreement or the other Loan Documents and (z) no amendment, waiver or consent shall, unless in writing and signed by the Swing Loan Lender in addition to the payment Lenders required above to take such action, affect the rights or duties of the Swing Loan Lender under this Agreement or the other Loan Documents; and provided, further, that the Administrative Agent may, with the consent of the Borrower, amend, modify or supplement this Agreement to cure any typographical error, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the right of any amounts owing by Lender or any Issuer.
(b) The Administrative Agent may, but shall have no obligation to, with the written concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such Defaulting 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 Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification, waiver or termination (a "Proposed Change") requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained but the consent of other Revolving Credit Lenders whose consent is required is not obtained (any such Revolving Credit Lender whose consent is not obtained as described in this Section 13.1 being referred to as a "Non-Consenting Lender"), then, as long as the Revolving Credit Lender acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower's request, any Eligible Assignee acceptable to the Administrative Agent hereunder; second, to shall have the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure right with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent's consent and in the Administrative Agent's sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent's request, sell and assign to the Revolving Credit Lender acting as the Administrative Agent or such Eligible Assignee, all of the Revolving Credit Commitments, and Revolving Credit Outstandings of such Non-Consenting Lender for an amount equal to the principal balance of all Loans held by the Non-Consenting Lender and all accrued and unpaid interest and fees with respect thereto through the date of sale; fifthprovided, if so determined by however, that such purchase and sale shall not be effective until (x) the Administrative Agent shall have received from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative Agent and the Parent Borrower, Borrower whereby such Eligible Assignee shall agree to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to bound by the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, terms hereof and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on Consenting Lender shall have received payments of all Loans held by it and all accrued and unpaid interest and fees with respect thereto through the date of the sale. Each Revolving Credit Lender agrees that, if it becomes a pro rata basis prior to being applied Non-Consenting Lender, it shall execute and deliver to the payment Administrative Agent an Assignment an Acceptance to evidence such sale and purchase and shall deliver to the Administrative Agent any Revolving Credit Note (if the assigning Revolving Credit Lender's Loans are evidenced by a Revolving Credit Note) subject to such Assignment and Acceptance; provided, however, that the failure of any Loans of, or Reimbursement Obligations owed to, Non-Consenting Lender to execute an Assignment and Acceptance shall not render such Defaulting Lender until such time as all Loans sale and funded purchase (and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (icorresponding assignment) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoinvalid.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principalthis Agreement or any other Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), interestand then the same shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) increase the Commitment of any Lender without the written consent of such Lender;
(b) reduce the principal amount of any Loan or the amount of any Reimbursement Obligation of any Account Party in respect of any L/C Disbursement or reduce the rate of interest thereon, or reduce any fees or other amounts received by payable hereunder, without the Administrative Agent for written consent of each Lender directly affected thereby;
(c) postpone the account scheduled date of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligations in respect for reimbursement of which any L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such Defaulting Lender has not fully funded its appropriate sharepayment, and (y) such Loans were made or postpone the related Letters scheduled date of expiration of any Commitment or any Letter of Credit were issued at a time when (other than an extension thereof pursuant to an “evergreen provision”), without the conditions written consent of each Lender directly affected thereby;
(d) change or waive any provision of Section 2.14, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders or this Section 11.5 without the consent of each Lender;
(e) release any of the Guarantors from any of their guarantee obligations under Article XII without the written consent of each Lender;
(f) change the percentage in the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent;
(g) modify the definitions in Section 1.1 of “Required Tranche 1 Lenders” or amend, modify or waive any condition precedent to any Borrowing of Loans set forth in Section 4.2 (Conditions Precedent to each Extension including in connection with any waiver of Creditan existing Default or Event of Default) were satisfied or waived, such payment shall be applied solely to pay without the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to consent of the payment Required Tranche 1 Lenders;
(h) modify the definitions in Section 1.1 of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters “Required Tranche 2 Lenders” without the consent of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.Required Tranche 2 Lenders;
Appears in 1 contract
Samples: Credit Agreement (Platinum Underwriters Holdings LTD)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Fee Letter, the Control Agreements and the Secured Hedging Agreements) and no consent to any departure by any Borrower therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by the Administrative Agent; fifthomission, if so determined defect or inconsistency, by the Administrative Agent and the Parent BorrowerParent, (2) in the case of an amendment granting a new Lien for the benefit of the Secured Parties or extending an existing Lien over additional property, by the Administrative Agent and each Borrower directly affected thereby, (3) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders), and (4) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrowers; provided, however, that no amendment, consent or waiver described in clause (3) or (4) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to be held any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of any Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, or (B) any fee or accrued interest payable to such Lender; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion of Letter of Credit Obligations with respect Commitment; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.4, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.6;
(Conditions Precedent to each Extension v) except as provided in Section 10.10, release any material portion of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, Collateral (it being acknowledged and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of understood that any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) Facility shall be deemed paid a material portion of the Collateral);
(vi) reduce or increase the proportion of Lenders required for the Lenders (or any subset thereof) to and redirected by such Defaulting Lendertake any action hereunder or change the definition of the terms “Required Lenders”, and each Lender irrevocably consents hereto.“Pro Rata Share” or “Pro Rata Outstandings”; or
(vii) amend Section 10.10 (Release of Collateral), Section 11.9 (Sharing of Payments) or this Section 11.1;
Appears in 1 contract
Samples: Credit Agreement (Emeritus Corp\wa\)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and, in the case of any amendment, by the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby, in addition to the Requisite Lenders, do any of the following:
(i) increase the Revolving Credit Commitment of such Defaulting Lender or subject such Lender to any additional obligation; provided, however, that, except as provided in Section 2.18, any such increase in the Revolving Credit Commitment of such Lender shall require the consent of all Lenders;
(ii) extend the then scheduled final maturity of any Loan owing to such Lender, except as provided in Section 2.17;
(iii) reduce the principal amount of any Loan or Reimbursement Obligation owing to such Lender (whether voluntary other than by the payment or mandatory, at maturity, pursuant prepayment thereof);
(iv) reduce the rate of interest on any Loan or Reimbursement Obligations outstanding to Article 8 such Lender or any fee payable hereunder to such Lender;
(Events v) postpone any scheduled date fixed for payment of Defaultsuch interest or fees owing to such Lender;
(vi) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(vii) release the Borrower from its payment obligation to such Lender under this Agreement or the Revolving Credit Notes owing to such Lender (if any) or otherwiserelease any Guarantor from its obligations under the Guaranty except in connection with sale or other disposition of a Guarantor (or all or substantially all of the assets thereof) or received as otherwise specifically provided herein; or
(viii) amend this Section 10.1 or the definition of the term “Requisite Lenders”; and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent, the Issuer or the Swing Loan Lender, as the case may be, in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent, the Issuer or the Swing Loan Lender, as the case may be, under this Agreement or the other Loan Documents.
(b) The Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right may, but shall have no obligation to, with the written concurrence of Set-off) any Lender, execute amendments, modifications, waivers or consents on behalf of such Lender. Any waiver or consent shall be applied at effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such time or times Lender whose consent is not obtained as may be determined by described in this Section 10.1 being referred to as a “Non-Consenting Lender”), then, so long as the Lender that is acting as the Administrative Agent as follows: firstis not a Non-Consenting Lender, at the Borrower’s request, each other Lender shall have a right to the payment purchase its pro rata share of any amounts owing by such Defaulting Lender Non-Consenting Lender’s Revolving Credit Commitment and Revolving Credit Outstandings, and if such Lenders do not purchase all of such Non-Consenting Lender’s Revolving Credit Commitment or Revolving Credit Outstandings, an Eligible Assignee acceptable to the Administrative Agent hereunder; second, to shall have the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure right with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth’s consent and in the Administrative Agent’s sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, if so determined and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent’s request, sell and assign to the Lender acting as the Administrative Agent or such Eligible Assignee, all of the Revolving Credit Commitments, and Revolving Credit Outstandings of such Non-Consenting Lender for an amount equal to the principal balance of all Loans held by the Non-Consenting Lender and all accrued interest and fees with respect thereto and all other amounts through the date of sale, provided, however, that such purchase and sale shall not be effective until the Administrative Agent shall have received from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative Agent and the Parent Borrower, Borrower whereby such Eligible Assignee shall agree to be held in bound by the terms hereof. Each Lender agrees that, if it becomes a deposit account Non-Consenting Lender, it shall execute and released pro rata in order deliver to the Administrative Agent an Assignment an Acceptance to evidence such sale and purchase and shall deliver to the Administrative Agent any Revolving Credit Note (x) satisfy such Defaulting if the assigning Lender’s potential future funding obligations with respect Loans are evidenced by a Revolving Credit Note) subject to Loans under this Agreement such Assignment and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion Acceptance; provided, however, that the failure of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Consenting Lender or Issuer against to execute an Assignment and Acceptance shall not render such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred sale and is continuing, to purchase (and the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (xcorresponding assignment) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoinvalid.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Administrative Agent Requisite Lenders, and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby, in addition to the Requisite Lenders, do any of the following:
(i) waive any of the conditions specified in Section 3.1 or 3.2 except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders or the Administrative Agent;
(ii) increase the Commitments of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at subject such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize additional obligation;
(iii) extend the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding scheduled final maturity of any Loan in respect of which owing to such Defaulting Lender has failed to fund its portion thereof as required by this AgreementLender, as determined by the Administrative Agent; fifthor waive, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to reduce or postpone any scheduled date fixed for the payment or reduction of principal of any amounts owing to such Loan (it being understood that Section 2.8 does not provide for scheduled dates fixed for payment) or for the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result reduction of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if 's Commitments;
(xiv) such payment is a payment of reduce the principal amount of any Loan (other than by the payment or prepayment thereof) owing to such Lender;
(v) reduce the rate of interest on any Loan owing to such Lender or the basis of any fee payable to such Lender hereunder;
(vi) postpone any scheduled date fixed for payment of such interest or fees to such Lender;
(vii) change the aggregate Ratable Portions of the Lenders which shall be required for the Lenders or any of them to take any action hereunder;
(viii) release all or substantially all of the Collateral except as provided in Section 10.8(b) or release any Subsidiary Guarantor from its obligations under the Guaranty except in connection with sale or other disposition permitted by the Loan Documents (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement); or
(ix) amend Section 10.8(b) or this Section 11.1 or the definition of the terms "Requisite Lenders", "Requisite Revolving Credit Lenders", "Requisite Term A Loan Lenders", "Requisite Term B Loan Lenders" or "Ratable Portion"; and provided, further, (A) that any modification of the application of payments to the Term A Loans or Reimbursement Obligations in respect Term B Loans pursuant to Section 2.8 shall require the consent of which such Defaulting Lender has not fully funded its appropriate sharethe Requisite Term A Loan Lenders or the Requisite Term B Loan Lenders (as the case may be) and any modification of the application of payments to the Revolving Loans pursuant to Section 2.8 shall require the consent of the Requisite Revolving Credit Lenders, and (yB) that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such Loans were made action, affect the rights or duties of the Administrative Agent under this Agreement or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoLoan Documents.
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Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Fee Letter, the Control Agreements, the L/C Reimbursement Agreements and the Secured Hedging Agreements) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower, to be held (2) in a deposit account and released pro rata in order to the case of any other waiver or consent, by the Required Lenders (xor by the Administrative Agent with the consent of the Required Lenders) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y3) Cash Collateralize in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2) or (3) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Defaulting Lender’s Ratable Portion ), in addition to any other Person the signature of Letter which is otherwise required pursuant to any Loan Document, do any of Credit Obligations with respect the following:
(i) waive any condition specified in Section 3.1, except any condition referring to future Letters any other provision of Credit issued under any Loan Document; REVOLVING CREDIT AGREEMENT [DAYTON SUPERIOR CORPORATION]
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation; provided, that increases in the aggregate amount of the Commitments shall only require the consent of the Required Lenders and each Lender providing such increase in the Commitments;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this Agreement; sixth, clause (iii) does not apply to any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any amounts such increase;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Lender or for the Non-Defaulting Lenders reduction of such Lender's Commitment; provided, however, that this clause (iv) does not apply to any change to mandatory prepayments, including those required under Section 2.1(c) and Section 2.8, or to the Issuers as a result application of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender payment, including as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.12;
(Conditions Precedent to each Extension v) except as provided in Section 10.10, release all or substantially all of Credit) were satisfied the Collateral or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment any Guarantor from its guaranty of any Loans of, Obligation of the Borrower;
(vi) reduce or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters increase the proportion of Credit and Swingline Loans are held by Lenders required for the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or heldany subset thereof) to pay amounts owed by a Defaulting Lender take any action hereunder or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderchange the definition of the terms "Required Lenders", and each Lender irrevocably consents hereto."Pro Rata Share" or "Pro Rata Outstandings"; or
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Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement or any other Loan Document (other than the Fee Letter, interestthe Supplemental Fee Letter, fees or other amounts received the Deposit Account Control Agreements, the Securities Account Control Agreements, the Letter of Credit Reimbursement Agreements and the Cash Management Documents) nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) same shall be applied at such time in writing and (x) in the case of an amendment to cure any ambiguity, omission, defect or times as may be determined by the Administrative Agent as follows: firstinconsistency, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined signed by the Administrative Agent and the Parent Borrower, (y) in the case of any such waiver or consent signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and (z) in the case of any other amendment, by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders ) and the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to be held the Requisite Lenders (or the Administrative Agent with the consent thereof), do any of the following:
(i) waive any condition specified in a deposit account Section 3.1 (Conditions Precedent to Effectiveness) or 3.2(b) (Conditions Precedent to Each Loan and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations Letter of Credit), except with respect to Loans under this Agreement and a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (yConditions Precedent to Effectiveness), subject to the provisions of Section 3.3 (Determinations of Initial Borrowing Conditions);
(ii) Cash Collateralize increase the Revolving Credit Commitment of such Defaulting Lender or subject such Lender to any additional obligation;
(iii) extend the scheduled final maturity of any Loan owing to such Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of principal or interest of any such Loan or fees owing to such Lender (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the reduction of such Lender’s Ratable Portion of Letter of Revolving Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixthCommitment;
(iv) reduce, to or release the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of Borrower from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement Obligation outstanding and owing to such Lender or any fee payable hereunder to such Lender;
(vi) expressly subordinate any of the Secured Obligations or any Lien securing the Secured Obligations;
(vii) postpone any scheduled date fixed for payment of interest or fees owing to such Lender or waive any such payment;
(viii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(ix) release all or substantially all of the Collateral except as provided in Section 8.8(b) (Concerning the Collateral and the Collateral Documents) or release the Borrower from its payment obligation to such Lender under this Agreement or the Revolving Credit Notes owing to such Lender (if any) or release any Guarantor from its obligations under the Guaranty except in connection with the sale or other disposition of a Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement);
(x) increase any of the percentages set forth in the definition of “Tranche A Borrowing Base” and “Tranche A-1 Borrowing Base” above the maximum percentages stated in such definition on the Effective Date or decrease the dollar amount set forth in the definition of “Borrowing Base Reserve” below the dollar amount stated in such definition on the Effective Date; or
(xi) amend Section 8.8(b) (Concerning the Collateral and the Collateral Documents), Section 9.7 (Sharing of Payments, Etc.), this Section 9.1 or either definition of the terms “Requisite Lenders” or “Ratable Portion”; and provided, further, that (w) no amendment, waiver or consent shall, unless in writing and signed by any Special Purpose Vehicle that has been granted an option pursuant to Section 9.2(e) (Assignments and Participations), affect the grant or nature of such option or the right or duties of such Special Purpose Vehicle hereunder, (x) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent under this Agreement or the other Loan Documents, (y) no amendment, waiver or consent shall, unless in writing and signed by the Swing Loan Lender in addition to the Lenders required above to take such action, affect the rights or duties of the Swing Loan Lender under this Agreement or the other Loan Documents and (z) prior to the consummation of the Debt Swap, no amendment, waiver or consent shall, unless in writing and signed by the Requisite Lenders, reduce or eliminate any Eligibility Reserve established hereunder and provided, further, that the Administrative Agent may, with the consent of the Borrower, amend, modify or supplement this Agreement to cure any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the rights of any Lender or any Issuer.
(b) The Administrative Agent may, but shall have no obligation to, with the written concurrence of any Lender, execute amendments, modifications, waivers or consents on behalf of such 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 Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification, waiver or termination requiring the consent of Requisite Lenders, all Lenders or all affected Lenders, the consent of Majority Lenders is obtained but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 9.1 being referred to as a “Non-Consenting Lender”), then, as long as the Lender acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower’s request, any Eligible Assignee acceptable to the Administrative Agent shall have the right with the Administrative Agent’s consent and in the Administrative Agent’s sole discretion (but shall have no obligation) to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent’s request, sell and assign to the Lender acting as the Administrative Agent or such Eligible Assignee, all of the Revolving Credit Commitments, and Revolving Credit Outstandings of such Non-Consenting Lender for an amount equal to the principal balance of all Loans held by the Non-Consenting Lender and all accrued and unpaid interest and fees with respect thereto through the date of which sale; provided, however, that such Defaulting Lender has purchase and sale shall be recorded in the Register maintained by the Administrative Agent and shall not fully funded its appropriate share, be effective until (x) the Administrative Agent shall have received from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative Agent and the Borrower whereby such Eligible Assignee shall agree to be bound by the terms hereof and (y) such Non-Consenting Lender shall have received payments of all Loans were made or held by it and all accrued and unpaid interest and fees with respect thereto through the related Letters date of the sale. Each Lender agrees that, if it becomes a Non-Consenting Lender, it shall execute and deliver to the Administrative Agent an Assignment an Acceptance to evidence such sale and purchase and shall deliver to the Administrative Agent any Revolving Credit were issued at Note (if the assigning Lender’s Loans are evidenced by a time when Revolving Credit Note) subject to such Assignment and Acceptance; provided, however, that the conditions set forth in Section 4.2 failure of any Non-Consenting Lender to execute an Assignment and Acceptance shall not render such sale and purchase (Conditions Precedent to each Extension of Creditand the corresponding assignment) were satisfied or waived, invalid and such payment assignment shall be applied solely to pay recorded in the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoRegister.
Appears in 1 contract
Samples: Credit Agreement (Tekni Plex Inc)
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Fee Letters, the Control Agreements, and the L/C Reimbursement Agreements) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower, (2) in the case of any other waiver, consent or amendment of any Secured Hedging Support Provision, by the Borrower and the applicable Secured Hedging Counterparty, (3) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders), (4) in the case of any amendment necessary to be held implement the terms of a Facilities Increase in accordance with the terms hereof, by the Borrower and the Administrative Agent, and (5) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2), (3), (4) or (5) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
a. waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
b. increase the Commitment of such Lender or subject such Lender to any additional obligation;
c. reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize any modification to any financial covenant set forth in Article V or in any definition set forth therein or principally
d. waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion of Letter of Credit Obligations with respect Commitment; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.8, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension 2.12;
e. except as provided in Section 10.10, release all or substantially all of Credit) were satisfied the Collateral or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment any Guarantor from its guaranty of any Loans of, Obligation of the Borrower;
f. reduce or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters increase the proportion of Credit and Swingline Loans are held by Lenders required for the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or heldany subset thereof) to pay amounts owed by a Defaulting Lender take any action hereunder or to post cash collateral pursuant to change the definition of the terms “Required Lenders”, “Pro Rata Share” or “Pro Rata Outstandings”; or
g. amend Section 10.10 (Release of Collateral or Guarantor), Section 11.9 (Sharing of Payments) or this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.11.1;
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Amendments, Waivers, Etc. Any payment With the written consent of principalthe Required Lenders, interest, fees or other amounts received by the Administrative Agent for and the account Borrower may, from time to time, enter into written amendments, supplements or modifications of such Defaulting Lender (whether voluntary or mandatorythe Loan Documents and, at maturitywith the written consent of the Required Lenders, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from on behalf of the Lenders may execute and deliver to any such parties a Defaulting Lender pursuant written instrument waiving or consenting to Section 10.6 (Right of Set-off) shall be applied at the departure from, on such time or times terms and conditions as may be determined by the Administrative Agent as follows: firstmay specify in such instrument, to any of the payment requirements of the Loan Documents or any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing)its consequences, to provided that no such amendment, supplement, modification, waiver or consent shall (i) increase the funding Commitment Amount of any Loan in respect Lender without the consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment provided that no waiver of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuingshall be deemed to constitute such an increase), to (ii) extend the Commitment Period without the consent of each Lender directly affected thereby, (iii) reduce the amount, or extend the time of payment, of the Fees without the consent of each Lender directly affected thereby, (iv) reduce the rate, or extend the time of payment of, interest on any Loan or any Note (other than the applicability of any post-default increase in such rate of interest) without the consent of each Lender directly affected thereby, (v) reduce the amount, or extend the time of payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of principal on any Loan or any Note without the consent of each Lender directly affected thereby, (vi) decrease or forgive the principal amount of any Loans Loan or Reimbursement Obligations in respect any Note without the consent of which each Lender directly affected thereby, (vii) consent to any assignment or delegation by the Borrower of any of its rights or obligations under any Loan Document without the consent of each Lender, (viii) change the provisions of this Section 11.1 without the consent of each Lender, (ix) change the definition of Required Lenders without the consent of each Lender, (x) change the several nature of the obligations of the Lenders without the consent of each Lender, or (xi) change the sharing provisions among Lenders without the consent of each Lender. Notwithstanding the foregoing, no such Defaulting Lender has not fully funded its appropriate shareamendment, and (y) supplement, modification, waiver or consent shall amend, modify or waive any provision of Article 10 or otherwise change any of the rights or obligations of the Administrative Agent under any Loan Document without the written consent of the Administrative Agent. Any such Loans were made amendment, supplement, modification, waiver or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent consent shall apply equally to each Extension of Credit) were satisfied or waived, such payment the Lenders and shall be applied solely binding upon the parties to pay the applicable Loan Document, the Lenders, the Administrative Agent and all future holders of the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment Notes. In the case of any Loans ofwaiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former position and rights under the Loan Documents, but any Default or Event of Default waived shall not extend to any subsequent or other Default or Event of Default, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters impair any right consequent thereon. Table of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.Contents
Appears in 1 contract
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and, in the case of any amendment, by the Borrower, and then any such waiver or consent shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender affected thereby, in addition to the Requisite Lenders, do any of such Defaulting Lender the following:
(whether voluntary i) waive any condition specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit) or mandatory, at maturity, pursuant Section 3.2(b) or (c) (Conditions Precedent to Article 8 Each Loan and Letter of Credit) (it being understood that the making of any Loan during the continuance of an Event of Default under Section 9.1(a) or (b) (Events of Default) affects each Lender), except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders;
(ii) increase the Revolving Credit Commitment of such Lender or otherwisesubject such Lender to any additional obligation; provided, however, that, except as provided in Section 2.19 (Facility Increase), any such increase in the Revolving Credit Commitment shall require the consent of all Lenders;
(iii) extend the scheduled final maturity of any Loan owing to such Lender, or waive (including any waiver of the maturity of the Loans held by any Non-Extending Lender), reduce or postpone any scheduled date fixed for the payment or reduction of principal of any such Loan (it being understood that Section 2.9 (Mandatory Prepayments)) does not provide for scheduled dates fixed for payment) or received for the reduction of such Lender's Revolving Credit Commitment;
(iv) reduce the principal amount of any Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement Obligations outstanding to such Lender or any fee payable hereunder to such Lender;
(vi) postpone any scheduled date fixed for payment of such interest or fees owing to such Lender;
(vii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(viii) increase the Advance Rate in respect of any Borrowing Base Asset or add any new category of Borrowing Base Asset to the Borrowing Base or change or modify the definition of any category of Borrowing Base Assets (other than to make any change the effect of which is to make a ministerial clarification of such definition);
(ix) release a material amount of the Collateral except as provided in Section 10.7(b) or release the Borrower from its payment obligation to such Lender under this Agreement or the Revolving Credit Notes owing to such Lender (if any) or release any Guarantor from its obligations under the Guaranty except in connection with sale or other disposition of a Guarantor (or all or substantially all of the assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement); or
(x) amend Section 10.7(b), this Section 11.1 (Amendments, Waivers, Etc.) or either definition of the terms "Requisite Lenders" or "Ratable Portion"; and provided, further, that no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent from a Defaulting Lender pursuant in addition to Section 10.6 (Right the Lenders required above to take such action, affect the rights or duties of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: firstunder this Agreement or the other Loan Documents.
(b) The Administrative Agent may, to but shall have no obligation to, with the payment written concurrence of any amounts owing by Lender, execute amendments, modifications, waivers or consents on behalf of such Defaulting 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 Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances.
(c) If, in connection with any proposed amendment, modification, waiver or termination (a "Proposed Change") requiring the consent of all affected Lenders, the consent of Requisite Lenders is obtained, but the consent of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 11.1 (Amendments, Waivers, Etc.) being referred to as a "Non-Consenting Lender"), then, so long as the Lender that is acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower's request, each other Lender shall have a right to purchase its pro rata share of such Non-Consenting Lender's Revolving Credit Commitment and Revolving Credit Outstandings, and if such Lenders do not purchase all of such Non-Consenting Lender's Revolving Credit Commitment or Revolving Credit Outstandings, an Eligible Assignee acceptable to the Administrative Agent hereunder; second, to shall have the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure right with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth's consent and in the Administrative Agent's sole discretion (but shall have no obligation) to purchase from such Non- Consenting Lender, if so determined and such Non-Consenting Lender agrees that it shall, upon the Administrative Agent's request, sell and assign to the Lender acting as the Administrative Agent or such Eligible Assignee, all of the Revolving Credit Commitments, and Revolving Credit Outstandings of such Non-Consenting Lender for an amount equal to the principal balance of all Loans held by the Non-Consenting Lender and all accrued interest and fees with respect thereto and all other amounts through the date of sale, provided, however, that such purchase and sale shall not be effective until the Administrative Agent shall have received from such Eligible Assignee an agreement in form and substance satisfactory to the Administrative Agent and the Parent Borrower, Borrower whereby such Eligible Assignee shall agree to be held in bound by the terms hereof. Each Lender agrees that, if it becomes a deposit account Non-Consenting Lender, it shall execute and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, deliver to the payment of any amounts owing Administrative Agent an Assignment an Acceptance to evidence such sale and purchase and shall deliver to the Non-Defaulting Lenders or Administrative Agent any Revolving Credit Note (if the Issuers as assigning Lender's Loans are evidenced by a result Revolving Credit Note) subject to such Assignment and Acceptance; provided, however, that the failure of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Consenting Lender or Issuer against to execute an Assignment and Acceptance shall not render such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred sale and is continuing, to purchase (and the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (xcorresponding assignment) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoinvalid.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document (other than the Fee Letter, the Control Agreements and the L/C Reimbursement Agreements) and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (1) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower, (2) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (3) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in clause (2) or (3) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to be held any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
(i) waive any condition specified in Section 3.1;
(ii) subject such Lender to any increase in Commitments or funding obligations;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of the Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans increase (including any waiver of default interest under this Agreement and Section 2.9(c) which shall only require the consent of the Required Lenders) or (y) Cash Collateralize any modification to the financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Defaulting Lender or for the reduction of such Lender’s Ratable Portion of Letter of Credit Obligations with respect Commitment; provided, however, that this clause (iv) does not apply to future Letters of Credit issued any change to mandatory prepayments, including those required under this Agreement; sixthSection 2.8, or to the payment application of any amounts owing to the Non-Defaulting Lenders or the Issuers payment, including as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 2.12;
(Conditions Precedent v) except as provided in Section 10.10, release all or substantially all of the Collateral or the value of all or substantially all of the Guarantors from their guaranty of any Obligation of the Borrower;
(vi) reduce or increase the proportion of Lenders required for the Lenders (or any subset thereof) to each Extension take any action hereunder or change the definition of Creditthe terms “Required Lenders,” “Pro Rata Share” or “Pro Rata Outstandings”; or
(vii) were satisfied amend Section 10.10 (Release of Collateral or waivedGuarantor), Section 11.9 (Sharing of Payments, Etc.) or this Section 11.1; and provided, further, that (x)(A) any waiver of any payment applied pursuant to Section 2.12(b) (Application of Mandatory Prepayments) to, and any modification of the application of any such payment to the Revolving Loans shall be applied solely require the consent of the Required Revolving Credit Lenders, (B) any change to pay the definition of the term “Required Revolving Credit Lender” shall require the consent of the Required Revolving Credit Lenders and (C) any amendment, waiver or consent to any provision of this Agreement (including Section 2.12 and Section 11.9) that permits the Borrower or any of its Affiliates to purchase Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a non-pro rata basis, become an eligible assignee pursuant to Section 11.2 and/or make offers to make optional prepayments on a non-pro rata basis shall require the prior to being applied to written consent of the payment Required Lenders rather than the prior written consent of each Lender directly affected thereby, (y) no amendment, waiver or consent shall affect the rights or duties under any Loans Loan Document of, or Reimbursement Obligations owed any payment to, such Defaulting Lender until such time as all Loans the Administrative Agent (or otherwise modify any provision of Article X or the application thereof), the Swingline Lender, any L/C Issuer or any SPV that has been granted an option pursuant to Section 11.2(f) unless in writing and funded and unfunded participations in Letters of Credit and Swingline Loans are held signed by the Administrative Agent, the Swingline Lender, such L/C Issuer or, as the case may be, such SPV in addition to any signature otherwise required and (z) the consent of the Borrower shall not be required to change any order of priority set forth in Section 2.12. No amendment, modification or waiver of this Agreement or any Loan Document altering the ratable treatment of Obligations arising under Secured Hedging Agreements resulting in such Obligations becoming junior in right of payment to principal of the Loans or resulting in Obligations owing to any Secured Hedging Counterparty becoming unsecured (other than releases of Liens applicable to all Lenders pro rata and otherwise permitted in accordance with the terms hereof and the terms of any other Loan Document), in each case in a manner adverse to any Secured Hedging Counterparty, shall be effective without the written consent of such Secured Hedging Counterparty or, in the case of a Secured Hedging Agreement provided or arranged by GE Capital or an Affiliate thereof, GE Capital. Notwithstanding anything to the contrary herein, no Permitted Investor that is a Lender shall have any right to approve or disapprove any amendment, waiver or consent under the Loan Documents. In addition, this Agreement may be amended with the written consent of the Administrative Agent, the Borrower and the Required Lenders to (A) 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 outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Credit Commitments without giving effect Loans and the accrued interest and fees in respect thereof and (B) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(b) Each waiver or consent under any Loan Document shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to clause (i) above. Any paymentsor demand on any Loan Party shall entitle any Loan Party to any notice or demand in the same, prepayments similar or other amounts paid or payable circumstances. No failure on the part of any Secured Party to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lenderexercise, and each Lender irrevocably consents heretono delay in exercising, any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment (1) Subject to (A) any consents required to be obtained from all of principalthe Lenders pursuant to this Section 11.2 and any other provisions of this Agreement or any other Loan Document which expressly require the consent, interest, fees approval or authorization of all of the Lenders and (B) any provisions of this Agreement and any other amounts received by Loan Document which authorize the Administrative Agent for to act unilaterally, without needing to obtain the account consent, approval or authorization of such Defaulting Lender (whether voluntary any of the Lenders, this Agreement and any other Loan Document may be amended, modified or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received supplemented only by an instrument in writing signed by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: firstBorrower, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent BorrowerMajority Lenders (or by the Borrower and the Administrative Agent with the consent of the Majority Lenders); provided, to be held in a deposit account and released pro rata in order to however, that the Administrative Agent may (without any Lender's consent) (x) satisfy such Defaulting Lender’s potential future funding obligations with respect enter into minor amendments to Loans under this Agreement and the other Loan Documents which are intended to clarify the provisions hereof or thereof, or which are ministerial in nature, or which are intended to correct any mistakes or errors herein or therein and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders give or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of withhold its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing agreement to any Borrower as a result waivers or consents under or in respect of the Loan Documents or exercise or refrain from exercising any judgment other rights or remedies which the Administrative Agent may have under the Loan Documents or otherwise provided that, in the case of a court either of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if the foregoing clauses (x) and (y), such payment is actions do not, in the Administrative Agent's judgment reasonably exercised, materially adversely affect the value of any collateral, taken as a payment whole, or represent a departure from the Administrative Agent's standard of care described in Section 13.5 (and the assignment or granting of a participation by GECC shall not limit or otherwise affect its discretion in respect of any of the foregoing). Notwithstanding the foregoing, the Administrative Agent will not, without the consent of each Lender, agree to the following (provided that no Lender's consent shall be required for any of the following which are otherwise required under the Loan Documents): (a) increase the principal amount of any the Commitments; (b) reduce the principal amount of the Loans or Reimbursement Obligations in respect the interest rate thereon (except that the Majority Lenders may waive the requirement that interest be paid at the Default Rate); (c) extend any stated payment date for principal of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay interest on the Loans ofpayable to such Lender; (d) release the Borrower, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any Guarantor or any other party from liability under the payment Loan Documents; (e) release or subordinate in whole or in part any material portion of any the collateral given as security for the Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata other than in accordance with Section 2.9; (f) modify any of the Revolving Credit Commitments without giving effect provisions of this Section, the definition of "Majority Lenders" or any other provision in the Loan Documents specifying the number or percentage of Lenders required to clause waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder; or (g) consent to (i) above. Any paymentsthe sale, prepayments transfer or other amounts paid or payable to encumbrance of any portion of a Defaulting Lender that are applied Project (or heldany interest therein) to pay amounts owed or any direct or indirect ownership interest therein and (ii) the incurrence by Borrower of any additional indebtedness secured by a Defaulting Lender Project, in each case to the extent (and subject to any standard of reasonability) such consent is required under the Loan Documents.
(2) Notwithstanding anything to contrary contained in this Agreement, any modification or to post cash collateral pursuant to this Section 2.21(a)(ii) supplement of Article 13, or of any of the rights or duties of the Administrative Agent hereunder, shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretorequire the consent of the Administrative Agent.
Appears in 1 contract
Samples: Loan Agreement (Center Trust Inc)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principal, interest, fees any provision of this Agreement or any other amounts received Loan Document nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and signed by the Requisite Lenders (or by the Administrative Agent with the consent of the Requisite Lenders) and, in the case of any amendment, by the Borrowers, and then any such waiver or consent shall be effective only in the Table of Contents specific instance and for the account of such Defaulting specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from with the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1(Conditions Precedent to Initial Loans and Letters of Credit) or Section 3.2(b) (Representations and Warranties; No Defaults), except with respect to a Defaulting Lender pursuant condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to Section 10.6 (Right Initial Loans and Letters of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: firstCredit), subject to the payment provisions of any amounts owing by Section 3.3 (Determinations of Initial Borrowing Conditions);
(ii) increase the Commitment of such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by or subject such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize additional obligation;
(iii) extend the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding scheduled final maturity of any Loan in respect owing to such Lender, or waive or postpone any scheduled date fixed for the payment or reduction of which principal of any such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Loan (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy reduction of such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and Commitment;
(yiv) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of reduce the principal amount of any Loans Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement Obligations in respect outstanding to such Lender or any fee payable hereunder to such Lender;
(vi) postpone any scheduled date fixed for payment of which such Defaulting Lender has not fully funded its appropriate share, and interest or fees owing to such Lender;
(yvii) such Loans were made change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(viii) extend the related Letters duration of Credit were issued at any Interest Period beyond six months;
(ix) release all or a time when substantial portion of the conditions set forth Collateral except as provided in Section 4.2 10.7(b) (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to in writing by each Lender directly affected thereby, (i) reduce or forgive the principal amount of such Defaulting Lender any Loan or funded Letter of Credit participation, reduce the rate of or forgive any interest thereon (whether voluntary provided that (y) only the consent of the Required Lenders shall be required to waive the applicability of any post-default increase in interest rates and (z) an amendment to implement a replacement index rate and related changes may be entered into in accordance with the terms of Section 2.23), or mandatory, at maturity, pursuant reduce or forgive any fees hereunder (other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 or the Arranger for its own account), (Right of Set-offii) shall be applied at such time extend the final scheduled maturity date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of or interest on any Loan or funded Letter of Credit participation (including any scheduled date for the mandatory reduction or termination of any Commitments, but excluding any mandatory prepayment of the Loans pursuant to Section 2.6(d) or 2.6(e) or reduction or termination of the Commitments in connection therewith), or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent hereunder; secondor the Arranger for its own account), to the payment on a pro rata basis or (iii) increase any Commitment of any amounts owing by such Defaulting Lender to over the amount thereof in effect or extend the maturity thereof (it being understood that a waiver of any Issuer condition precedent set forth in Section 3.2 or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no of any Default or Event of Default has occurred and is continuingor mandatory reduction in the Commitments, if agreed to by the Required Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase), or (iv) reduce the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”);
(b) unless agreed to in writing by all of the Lenders, (i) release all or substantially all of the Collateral (except as may be otherwise specifically provided in this Agreement or in any other Credit Document), (ii) release any Guarantor from its obligations under the Guaranty (other than (A) as may be otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the Capital Stock of such Guarantor in a transaction expressly permitted under or pursuant to this Agreement), (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such amendment, modification, waiver, discharge, termination or consent, (iv) change or waive any provision of Section 2.13, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders in a manner that would alter the pro rata treatment required thereby, or (vi) amend this Section 10.5;
(c) [reserved];
(d) [reserved];
(e) unless agreed to in writing by the L/C Issuer or the Administrative Agent in addition to the funding Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the L/C Issuer or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents; and
(f) unless agreed to in writing by each Rate Management Party and Cash Management Bank that would be adversely affected thereby in its capacity as such relative to the Lenders, (i) amend the definition of “Secured Obligations” in any Security Document or the definition of “Guaranteed Obligations” in the Guaranty (or any similar defined term in any other Credit Document benefiting such Rate Management Party), (ii) amend the definition of “Secured Parties” in any Security Document or “Guaranteed Parties” in the Guaranty (or any similar defined term in any other Credit Document benefiting such Rate Management Party), or (iii) amend any provision regarding priority of payments in this Agreement or any other Credit Document; and provided further that (i) if any amendment, modification, waiver or consent would adversely affect the holders of Loans of a particular Class (the “Affected Class”) relative to holders of Loans of another Class (including by way of reducing the relative proportion of any payments, prepayments or Commitment reductions to be applied for the benefit of holders of Loans of the Affected Class under Section 2.6(d) or 2.6(e)), then such amendment, modification, waiver or consent shall require the written consent of Lenders holding at least a majority of the aggregate outstanding principal amount of all Loans (and unutilized Commitments, if any) of the Affected Class, (ii) the Fee Letter may be amended or modified, and any rights thereunder waived, in a writing signed only by the parties thereto, (iii) any Incremental Amendment need be executed only by the Borrower, the other Credit Parties, the Administrative Agent and each Person that agrees to provide an Incremental Commitment with respect to the Incremental Increase implemented thereby. Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Xxxxxx sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein. Notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) no Commitment or Loan in respect of which any Defaulting Lender may be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, and (ii) if so determined by the Administrative Agent and the Parent Borrower shall have jointly identified (each in its sole discretion) an obvious error or omission of a technical or immaterial nature, or any ambiguity, mistake, defect or inconsistency, in each case, in any provision of the Credit Documents, then the Administrative Agent and the applicable Loan Parties shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in writing by the Required Lenders within five Business Days following the posting of such amendment to the Lenders. Notwithstanding anything to the contrary in this Agreement or any other Credit Document, (a) any Lender may exchange, continue or rollover all or the portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender, (b) this Agreement may be amended and restated without the consent of any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be held a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated, such Lender shall have no other commitment or other obligation hereunder and shall have been paid in a deposit full all principal, interest and other amounts owing to it or accrued for its account under this Agreement, and released pro rata in order to (xc) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under the Administrative Agent may amend or modify this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of any other Credit Obligations with respect Document to future Letters of Credit issued under this Agreement; sixth, to grant a new Lien for the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment benefit of the principal amount holders of any Loans the Obligations, extend an existing Lien over additional property for the benefit of the holders of the Obligations or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of join additional Persons as Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretoParties.
Appears in 1 contract
Samples: Credit Agreement (Greenbacker Renewable Energy Co LLC)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by the Borrower from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or forgive the principal amount of any Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon (provided the consent of the Required Lenders shall be required to (A) waive the applicability of any additional interest payable under Section 2.8(b) at the election of the Required Lenders and (B) change financial covenant provisions and related definitions (including amendments to account of such Defaulting Lender for changes or modifications to GAAP) which may affect the Applicable Margin Percentage), or reduce or forgive any fees hereunder or other Obligations (whether voluntary or mandatory, at maturity, pursuant other than fees payable to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Agent, the Arrangers or an Issuing Lender pursuant to Section 10.6 for its own account), (Right of Set-offii) shall be applied at such time extend the Maturity Date or times as may be determined by the Administrative Agent as follows: first, to any other scheduled date for the payment of any amounts owing by such Defaulting Lender principal of any Loan (including any scheduled date for the mandatory reduction or termination of any Commitments), any interest on any Loan (other than additional interest payable under Section 2.8(b) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Administrative Agent hereunder; secondAgent, to the payment on a pro rata basis Arrangers or an Issuing Lender for its own account) or any other Obligations, or extend the expiry date of any amounts owing by such Defaulting Lender to Letter of Credit in a manner not permitted under ARTICLE III, or extend the time of payment of any Issuer Reimbursement Obligation or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender any interest thereon (it being understood that a waiver of any condition precedent set forth in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no 4.2 or of any Default or Event of Default has occurred and is continuingor mandatory reduction in the Commitments, if agreed to by the Required Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an extension), (iii) increase or extend any Commitment of any such Lender (it being understood that a waiver of any condition precedent set forth in Section 4.2 or of any Default or Event of Default or mandatory reduction in the Commitments, if agreed to by the Required Lenders or all Lenders (as may be required hereunder with respect to such waiver), shall not constitute such an increase), (iv) change or waive any provision of Section 2.15 or any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders in a manner that would alter the pro rata sharing of payments required thereby, (v) change any provision of this Section 11.5(a), or (vi) change the definition of “Required Lenders” or any other provision hereof specifying the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”);
(b) unless agreed to in writing by all of the Lenders, except as may be otherwise specifically provided in this Agreement or in any other Credit Document, (i) release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty (other than in connection with the sale or other disposition of all of the capital stock of such Subsidiary Guarantor in a transaction expressly permitted under or pursuant to this Agreement) or (ii) subordinate any of the Obligations in right of payment or otherwise adversely affect the priority of payment of any of such Obligations or;
(c) unless agreed to in writing by the Issuing Lenders, the Swingline Lender or the Administrative Agent in addition to the funding Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of any Loan in respect of which such Defaulting the Issuing Lenders, the Swingline Lender has failed to fund its portion thereof as required by this Agreement, as determined by or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents;
(d) unless agreed to in writing by each Hedge Party and Cash Management Bank affected thereby in its capacity as such (i) amend any provision regarding priority of payments in this Agreement or any other Credit Document or (ii) release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty (other than (A) as may be otherwise specifically provided in this Agreement or in any other Credit Document or (B) in connection with the sale or other disposition of all of the capital stock of such Subsidiary Guarantor in a transaction expressly permitted under or pursuant to this Agreement); fifthand provided further that any Fee Letter may be amended or modified, and any rights thereunder waived, in a writing signed by the parties thereto. Notwithstanding the fact that the consent of all Lenders is required in certain circumstances as set forth above, each Lender is entitled to vote as such Xxxxxx sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein. Notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender, (ii) if so determined by the Administrative Agent and the Parent BorrowerBorrower shall have jointly identified (each in its sole discretion) an obvious error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents, then the Administrative Agent and the Borrower shall be permitted to be held amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in a deposit account writing by the Required Lenders within five (5) Business Days following the posting of such amendment to the Lenders and released pro rata (iii) the Administrative Agent and the Borrower may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the other Credit Documents or enter into additional Credit Documents as the Administrative Agent reasonably deems appropriate in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion implement any Benchmark Replacement or otherwise effectuate the terms of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata 2.17 in accordance with the terms of Section 2.17. Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and without further consent, to enter into amendments or modifications to this Agreement (including, without limitation, amendments to this Section 11.5) or any of the other Credit Documents or to enter into additional Credit Documents as the Administrative Agent reasonably deems appropriate in order to effectuate the terms of Section 2.21 (including, without limitation, as applicable, (1) to permit the Revolving Commitment Increase to share ratably in the benefits of this Agreement and the other Credit Commitments without giving effect Documents and (2) to clause include the Revolving Commitment Increase or outstanding Revolving Commitment Increase, in any determination of (i) above. Any payments, prepayments Required Lenders (ii) similar required lender terms applicable thereto); provided that no amendment or other amounts paid or payable modification shall result in any increase in the amount of any Lender’s Commitment without the written consent of such affected Lender if the same is not objected to a Defaulting Lender that are applied in writing by the Required Lenders within five (or held5) Business Days following the posting of such amendment to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretothe Lenders.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principalthis Agreement or any other Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), interestand then the same shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) increase the Commitment of any Lender without the written consent of such Lender;
(b) reduce the principal amount of any Loan or the amount of any Reimbursement Obligation of any Account Party in respect of any L/C Disbursement or reduce the rate of interest thereon, or reduce any fees or other amounts received by payable hereunder, without the Administrative Agent for written consent of each Lender directly affected thereby;
(c) postpone the account scheduled date of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligations in respect for reimbursement of which any L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such Defaulting Lender has not fully funded its appropriate sharepayment, and (y) such Loans were made or postpone the related Letters scheduled date of expiration of any Commitment or any Letter of Credit were issued at a time when (other than an extension thereof pursuant to an “evergreen provision”), without the conditions set forth in written consent of each Lender directly affected thereby;
(d) change or waive any provision of Section 4.2 (Conditions Precedent to each Extension 2.14, any other provision of Credit) were satisfied this Agreement or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a any other Credit Document requiring pro rata basis treatment of any Lenders in a manner that would alter the pro rata sharing of payments required thereby without the consent of each Lender;
(e) change or waive any provision of this Section 11.5 without the consent of each Lender;
(f) release any of the Guarantors from any of their guarantee obligations under Article XII without the written consent of each Lender;
(g) change the percentage in the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior to being applied written consent of the Administrative Agent;
(h) except as expressly provided in the Credit Documents, release any Collateral from the Liens under all of the Security Documents to the payment of any Loans ofextent that, or Reimbursement Obligations owed toimmediately after giving effect thereto, such Defaulting Lender until such time as all the aggregate Loans and funded and unfunded participations in Letters L/C Obligations attributable to any Credit Party would exceed the Borrowing Base of such Credit and Swingline Loans are held by Party, without the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause consent of each Lender;
(i) abovemodify the definitions in Section 1.1 of “Borrowing Base,” “Eligible Collateral” or “Eligible Percentage” or Schedule 1.1(b) without the consent of each Lender; and
(j) unless agreed to by the Fronting Banks or the Administrative Agent in addition to the Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the Fronting Banks or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents. Any paymentsNotwithstanding anything to the contrary herein, prepayments or other amounts paid or payable to a (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that are applied (or held) to pay amounts owed by a the Commitment of any Defaulting Lender may not be increased or to post cash collateral pursuant to this Section 2.21(a)(iiextended without the consent of such Lender and (ii) if the Administrative Agent and Platinum Holdings shall have jointly identified (each in its sole discretion) an obvious error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents, then the Administrative Agent and the applicable Credit Parties shall be deemed paid permitted to amend such provision and redirected such amendment shall become effective without any further action or consent of any other party to any Credit Document if the same is not objected to in writing by the Required Lenders within five Business Days following the posting of such Defaulting Lender, and each Lender irrevocably consents heretoamendment to the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Platinum Underwriters Holdings LTD)
Amendments, Waivers, Etc. Any payment of principal(a) Neither this Agreement nor the Notes nor any other Loan Document nor any provision hereof or thereof may be amended, interestwaived, fees discharged or other amounts received terminated except by a written instrument signed by the Administrative Agent for on behalf of the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourthLenders or, as the Parent case may be, by the Lenders, and also, in the case of amendments, by the Borrower.
(b) Except where this Agreement or any of the other Loan Documents authorizes or permits the Agent to act alone or requires the automatic release of the Lenders’ Encumbrances on Collateral and except as otherwise expressly provided in this Section 11.7(b), any action to be taken (including the giving of notice) by the Lenders may be taken, and any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Lenders may be given, and any term of this Agreement, any other Loan Document or any other instrument, document or agreement related to this Agreement or the other Loan Documents or mentioned therein may be amended, and the performance or observance by the Borrower may request (so long as no or any other Person of any of the terms thereof and any Default or Event of Default has occurred (as defined in any of the above-referenced documents or instruments) may be waived (either generally or in a particular instance and is continuingeither retroactively or prospectively), to in each case only with the funding written consent of the Majority Lenders; provided, however, that no such amendment, consent or waiver shall (i) increase the Commitment of any Loan in respect Lender without the written consent of which such Defaulting Lender has failed to fund its portion thereof as required by this AgreementLender, as determined by (ii) reduce the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment principal amount of any amounts owing to Loan, or waive or excuse any payment thereof, or reduce the Non-Defaulting Lenders rate of interest thereon, or reduce any premium or fees payable hereunder, without the Issuers as a result written consent of any judgment each Lender directly affected thereby, (iii) postpone the scheduled date of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan, or Reimbursement Obligations any interest (or premium, if any) thereon or any fees payable hereunder, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) amend this Section 11.7(b) or change the definition of “Majority Lenders” or the number of Lenders which shall be required for the Lenders or any of them to take any action under the Loan Documents, without the written consent of each Lender, (v) change the definition of “Borrowing Base” set forth in respect Section 1.1, amend Section 2.1(a) or waive the limitations set forth in Section 2.1(a), without the consent of which such each Lender, (vi) release any Collateral, except as provided in Section 10.2(b) or as expressly set forth in any other Loan Document, or amend Sections 2.5 or 2.6 hereof, without the consent of each Lender, or (vii) amend, modify or otherwise affect the rights or duties of the Agent hereunder or under any other Loan Document without the written consent of the Agent. Notwithstanding anything to the contrary herein, no Defaulting Lender has shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not fully funded its appropriate share, be increased or extended without the consent of such Lender and (y) such Loans were made any waiver, amendment or modification requiring the related Letters consent of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to all Lenders or each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of affected Lender that by its terms affects any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters disproportionately adversely relative to other affected Lenders shall require the consent of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment Neither this Agreement nor any other Document, nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with the provisions of principalthis Section. Unless otherwise specified in this Agreement, interestthe Majority Lenders may, fees or other amounts received by or, with the written consent of the Majority Lenders, the Administrative Agent shall, from time to time, (X) enter into with the Borrower, written amendments, supplements or modifications hereto and to the other Financing Documents for the account purpose of such Defaulting Lender amending, adding, remaining or replacing any provisions to this Agreement or to the other Financing Documents or changing in any manner the rights or obligations of the Lenders or the Borrower hereunder or thereunder or (whether voluntary or mandatoryY) waive, at maturitythe Borrower’s request, pursuant on such terms and conditions as the Majority Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Documents or any Default and its consequences; provided, however, that, subject to Article 8 Section 5.2, no such waiver and no such amendment, supplement or modification shall:
(Events a) reduce the amount or extend the scheduled date of Defaultmaturity of any Advance or any other obligation or of any scheduled installment thereof; or reduce the stated rate of any interest or fees payable hereunder; or extend the scheduled date of any payment thereof or modify any provision that provides for the sharing by the Lenders of any payment or prepayment of indebtedness to provide for a non-ratable sharing thereof; or increase the amount or extend the expiration date of any Commitments; or change the currency in which any Advance is payable; or amend, modify or waive any provision of this Section 13.1; or reduce the required percentages of Majority Lenders, Super Majority Lenders or Unanimous Lenders as specified in this Agreement; in each case, without the prior written consent of the Unanimous Lenders;
(b) release the Borrower from its obligations under the Financing Documents or otherwise) or received by any of the Collateral, without the written consent of the Unanimous Lenders; provided that the Administrative Agent shall release (without consent from a Defaulting Lender pursuant to the Lenders) any Collateral sold, transferred or otherwise disposed of which is permitted by Section 10.6 10.3(e);
(Right c) amend, modify or waive any provision of Set-off) shall be applied at such time Section 7 of the Provisions or times as may be determined by any other provision dealing with the rights and duties of the Administrative Agent as follows: first, to without the payment written consent of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent;
(d) amend, modify or waive any provision dealing with the rights and duties of the Issuing Bank without the written consent of the Issuing Bank; fifthor
(e) amend, if so determined by modify or waive any provision of Sections 11.6 or 12.2 hereof or Section 5 of the Provisions without the written consent of the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) aboveUnanimous Lenders. Any paymentswaiver and any amendment, prepayments supplement or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral modification pursuant to this Section 2.21(a)(ii) 13.1 shall apply to each Lender and shall be binding upon the Borrower, the Lenders, the Secured Parties and the Administrative Agent and all future holders of the Advances. In the case of any waiver, the Borrower, the Lenders, the Secured Parties, the Administrative Agent shall be restored to their former position and rights hereunder and under the other Financing Documents, and any Default waived shall be deemed paid to be cured and redirected by not continuing; but no such Defaulting Lenderwaiver shall extend to any subsequent or other Default, and each Lender irrevocably consents heretoor impair any right consequent thereon. Notwithstanding anything contained in this Section 13.1 to the contrary, the foregoing provisions do not apply to Hedge Agreements, nor to any amendment, supplement, modification or waiver of any of the terms thereof.
Appears in 1 contract
Samples: Third Amended and Restated Credit Agreement (Agnico Eagle Mines LTD)
Amendments, Waivers, Etc. Any payment (a) This Agreement may not be supplemented, amended or modified without the consent of principaleach Trustee (acting with the consent of holders of Certificates of the related Class evidencing interests in the related Trust aggregating not less than a majority in interest in such Trust or as otherwise authorized pursuant to the relevant Trust Agreement), interestthe Subordination Agent, fees each Liquidity Provider and the Policy Provider; provided, however, that this Agreement may be supplemented, amended or other amounts modified without the consent of (x) any Trustee if such supplement, amendment or modification (i) is in accordance with Section 9.1(c) hereof or (ii) cures an ambiguity or inconsistency or does not materially adversely affect such Trustee or the holders of the related Class of Certificates and (y) any Liquidity Provider or the Policy Provider if such supplement, amendment or modification is in accordance with Section 9.1(c) hereof. Notwithstanding the foregoing, without the consent of each Certificateholder and each Liquidity Provider and the Policy Provider, no supplement, amendment or modification of this Agreement may (i) reduce the percentage of the interest in any Trust evidenced by the Certificates issued by such Trust necessary to consent to modify or amend any provision of this Agreement or to waive compliance therewith or (ii) except as provided in Section 9.1(c), modify Section 2.4, 3.2 or 3.3 hereof, relating to the distribution of monies received by the Administrative Subordination Agent for hereunder from the account of such Defaulting Lender (whether voluntary Equipment Notes or mandatory, at maturity, pursuant to Article 8 (Events the Liquidity Facilities or the Policy. Nothing contained in this Section shall require the consent of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied Trustee at such any time or times as may be determined by the Administrative Agent as follows: first, to following the payment of any amounts owing by such Defaulting Lender Final Distributions with respect to the Administrative Agent hereunder; secondrelated Class of Certificates.
(b) In the event that the Subordination Agent, to as the payment on a pro rata basis registered holder of any amounts owing by such Defaulting Lender Equipment Notes, receives a request for its consent to any Issuer amendment, modification, consent or Swingline Lender hereunder; thirdwaiver under such Equipment Notes, the Indenture pursuant to Cash Collateralize which such Equipment Notes were issued, or the Issuers’ Fronting Exposure related Lease, Participation Agreement or other related document, (i) if no Indenture Default shall have occurred and be continuing with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourthIndenture, as the Parent Borrower may Subordination Agent shall request (so long as no Default or Event directions from the Trustee of Default has occurred and is continuing), to the funding of any Loan in respect of Trust which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result holds each series of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default Equipment Notes and shall vote or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata consent in accordance with the Revolving Credit Commitments directions of such Trustee except that so long as the Final Distribution on the Class G Certificates has not been made or any Policy Provider Obligations remain outstanding and no Policy Provider Default shall have occurred and be continuing, the Subordination Agent shall request directions from the Policy Provider rather than the Class G Trustee with respect to the Series G Equipment Notes held in the Class G Trust, and (ii) if any Indenture Default (which, in the case of any Indenture pertaining to a Leased Aircraft, has not been cured by the applicable Owner Trustee or the applicable Owner Participant, if applicable, pursuant to Section 4.03 of such Indenture) shall have occurred and be continuing with respect to such Indenture, the Subordination Agent will exercise its voting rights as directed by the Controlling Party, subject to Sections 4.1 and 4.4 hereof; provided that no such amendment, modification or waiver shall, without giving the consent of each Liquidity Provider and the Policy Provider, reduce the amount of rent, supplemental rent or stipulated loss values payable by ATA under any Lease or reduce the amount of principal or interest payable by ATA under any Equipment Note issued under any Indenture in respect of an Owned Aircraft; and provided further that no amendment of or supplement to any Indenture, any Lease, the Purchase Agreement, the Purchase Agreement Assignment, the Consent and Agreement, Engine Manufacturer Warranty Agreement, the Guarantee, the Note Purchase Agreement or any Participation Agreement (the terms "Purchase Agreement", "Purchase Agreement Assignment", "Consent and Agreement", "Engine Manufacturer Warranty Agreement" and "Guarantee" having the meanings specified in the Participation Agreements or the Note Purchase Agreement) or waiver or modification of the terms of, or consent under, any thereof, shall, without the consent of each Liquidity Provider and the Policy Provider, have any of the effects listed in the proviso to Section 9.01(b) of such Indenture, if such Indenture is an Leased Aircraft Indenture, and 10.01(b) of such Indenture if such Indenture is an Owned Aircraft Indenture.
(c) If with respect to any Owned Aircraft, ATA issues Class D Certificates, this Agreement shall be amended to provide for the subordination of such Class D Certificates to the Class G Certificates and the Class C Certificates substantially in the same manner as the Class C Certificates are subordinated hereunder to the Class G Certificates. No such amendment shall materially adversely affect any Trustee, Liquidity Provider, the Policy Provider or the holders of any Class of Certificates. The amendment to this Agreement to give effect to clause the issuance of any Class D Certificates shall include, without limitation:
(i) abovethe trustee of the Class D Trust shall be added as a party to this Agreement;
(ii) the definitions of "Cash Collateral Account," "Certificate," "Class," "Equipment Notes," "Final Legal Distribution Date," "Liquidity Facilities," "Liquidity Provider," "LTV Ratio" "Stated Interest Rate," "Trust," "Trust Agreement," "Controlling Party" shall be revised, as appropriate, to reflect the issuance of Class D Certificates (and the subordination thereof); and the provisions of this Agreement governing payments with respect to Certificates and related notices, including, without limitation, Sections 2.4, 3.1, 3.2, 3.3 and 3.6(e), shall be revised to provide for distributions on the Class D Certificates after payment of all relevant distributions on the Class C Certificates. Any paymentsIf, prepayments or with respect to any Aircraft, Series D Equipment Notes are issued to any Person other amounts paid or payable than the Class D Trust, this Agreement shall be amended by written agreement of ATA and the Subordination Agent to (i) provide for each holder of a Defaulting Lender Series D Equipment Note to be bound by the provisions of Section 2.6(a) hereof so that are applied the Controlling Party shall, among other things, be entitled to direct the Loan Trustee as provided therein (or heldand such Series D Equipment Notes shall make effective provision therefor so as to bind each holder thereof to such provisions of Section 2.6(a) hereof) and (ii) to pay amounts owed by a Defaulting Lender revise the definitions of "Controlling Party" and "Equipment Notes", as appropriate, to reflect the issuance of the Series D Equipment Notes (and the prior rights, as against the holders of such Series D Equipment Notes, of the Policy Provider, Class G Trustee and the Class C Trustee to be such "Controlling Party"). No such amendment shall materially adversely affect any Trustee, Liquidity Provider or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents heretothe Policy Provider.
Appears in 1 contract
Samples: Intercreditor Agreement (Amtran Inc)
Amendments, Waivers, Etc. Any payment (a) No amendment or waiver of principalany provision of this Agreement or any other Loan Document (other than the Fee Letter, interesteach Letter of Credit Reimbursement Agreement and notice of grant of a security interest with respect to Intellectual Property) nor consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be in writing and (x) in the case of any such waiver or consent, fees signed by the Requisite Lenders (or other amounts received by the Administrative Agent for with the account consent of such Defaulting Lender the Requisite Lenders) and (whether voluntary y) in the case of any other amendment, by the Requisite Lenders (or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right with the consent of Set-offthe Requisite Lenders) and the Borrower or the applicable Loan Party, as the case may be, and then any such waiver or consent shall be applied at such time effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or times as may be determined consent shall, unless in writing and signed by each Lender directly affected thereby, in addition to the Requisite Lenders (or the Administrative Agent as follows: firstwith the consent thereof), do any of the following:
(i) waive any condition specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit) or 3.2(b) or (c) (Conditions Precedent to Each Loan and Letter of Credit), except with respect to a condition based upon another provision hereof, the waiver of which requires only the concurrence of the Requisite Lenders and, in the case of the conditions specified in Section 3.1 (Conditions Precedent to Initial Loans and Letters of Credit), subject to the payment provisions of any amounts owing by Section 3.3 (Determinations of Initial Borrowing Conditions);
(ii) increase the Commitment of such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by or subject such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize additional obligation;
(iii) extend the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding scheduled final maturity of any Loan in respect owing to such Lender, or waive, reduce or postpone any scheduled date fixed for the payment or reduction of which principal or interest of any such Defaulting Loan or fees owing to such Lender has failed to fund its portion thereof as required by this Agreement, as determined by (it being understood that Section 2.9 (Mandatory Prepayments) does not provide for scheduled dates fixed for payment) or for the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy reduction of such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and Commitment;
(yiv) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixthforgive, to reduce, or release the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of Borrower from its obligations under this Agreement; seventhto repay, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans Loan or Reimbursement Obligation owing to such Lender (other than by the payment or prepayment thereof);
(v) reduce the rate of interest on any Loan or Reimbursement Obligation outstanding and owing to such Lender or any fee payable hereunder to such Lender;
(vi) expressly subordinate any of the Obligations or any Liens securing the Obligations;
(vii) postpone any scheduled date fixed for payment of interest or fees owing to such Lender or waive any such payment;
(viii) change the aggregate Ratable Portions of Lenders required for any or all Lenders to take any action hereunder;
(A) release all or substantially all of the Collateral except as provided in respect of which Section 10.8(b) (Concerning the Collateral and the Collateral Documents), (B) release the Borrower from its payment obligation to such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made under this Agreement or the related Letters Notes owing to such Lender (if any), (C) release all or substantially all of Credit were issued at the Guarantors from its or their obligations under the Guaranty except in connection with the sale or other disposition of a time when Guarantor (or all or substantially all of the conditions set forth assets thereof) permitted by this Agreement (or permitted pursuant to a waiver or consent of a transaction otherwise prohibited by this Agreement) or (D) amend, modify or waive the proviso in Section 4.2 11.10 (Conditions Precedent to each Extension of CreditBinding Effect); or
(x) were satisfied or waivedamend Section 10.8(b) (Concerning the Collateral and the Collateral Documents), such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause Section 11.7 (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Appears in 1 contract
Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or ------------------------ discharge or termination of, or consent to any departure by the Borrower from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, -------- ------- modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Administrative Agent for its appropriate shareown account), and or (yii) such Loans were made extend the Maturity Date or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any other date fixed for the payment of any Loans ofprincipal of or interest on any Loan (other than additional interest payable under SECTION 2.8(b) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Administrative Agent for its own account) or any other Obligations, or Reimbursement Obligations owed to, (unless such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters Letter of Credit has been fully cash collateralized or is backed by one or more letters of credit issued in favor of the Issuing Lender for the account of the Borrower on terms and Swingline Loans are held by an issuer satisfactory to the Lenders pro rata in accordance with Issuing Bank and the Revolving Administrative Agent) extend the expiry date of any Letter of Credit Commitments without giving effect beyond the seventh day prior to clause the Maturity Date;
(b) unless agreed to by all of the Lenders, (i) above. Any paymentsincrease or extend any Commitment of any Lender (it being understood that a waiver of any Event of Default, prepayments if agreed to by the requisite Lenders hereunder, shall not constitute such an increase or extension), (ii) change the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take or approve, any action hereunder (including as set forth in the definition of "Required Lenders"), (iii) except as may be otherwise specifically provided in this Agreement or in any other amounts paid Credit Document, release all or payable substantially all of the Collateral, release Parent or Holdings from the Parent Guaranty, or release any material Guarantor from a Subsidiaries Guaranty, or (iv) change any provision of SECTION 2.15 or this SECTION 11.6; and
(c) unless agreed to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting the Issuing Lender, the Swingline Lender or the Administrative Agent in addition to post cash collateral pursuant the Lenders required as provided hereinabove to this Section 2.21(a)(ii) shall be deemed paid to and redirected by take such Defaulting action, affect the respective rights or obligations of the Issuing Lender, the Swingline Lender or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents; and each provided further that the Fee Letter and any Interest Rate Protection -------- ------- Agreement to which any Lender irrevocably consents heretois a party may be amended or modified, and any rights thereunder waived, in a writing signed by the parties thereto.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment Neither this Agreement, any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of principalthis Section 11.
1. The Required Lenders and each Loan Party party to the relevant Loan Document may, interestor, fees or other amounts received by with the written consent of the Required Lenders, the Administrative Agent and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into written amendments, consents, supplements or modifications hereto and to the other Loan Documents for the account purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such Defaulting Lender (whether voluntary terms and conditions as the Required Lenders or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourthAgent, as the Parent Borrower case may request (so long as no be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default has occurred and is continuing)its consequences; provided, however, that any such amendment or waiver to the funding terms and conditions of Section 5.1 shall be subject only to the consent of the Required Revolving Credit Lenders; provided, further, that no such waiver and no such amendment, consent, supplement or modification shall (i) forgive or reduce the principal amount or extend the final scheduled date of maturity of any Loan, extend the scheduled date of any amortization payment in respect of any Term Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in connection with the waiver of applicability of any post-default increase in interest rates (which waiver shall be effective with the consent of the Majority Facility Lenders of each adversely affected Facility) and (y) that any amendment or modification of defined terms used in the financial covenant in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Lender’s Revolving Credit Commitment, in each case without the written consent of each Lender directly affected thereby; (ii) eliminate or reduce the voting rights of any Lender under this Section 11.1 without the written consent of such Lender; (iii) reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their obligations under the Guaranty and Security Agreement, in each case without the written consent of all Lenders; (iv) amend, modify or waive any provision of Section 2.13 without the written consent of the Majority Facility Lenders in respect of each Facility adversely affected thereby; (v) reduce the percentage specified in the definition of Majority Facility Lenders with respect to any Facility without the written consent of all Lenders under such Facility; (vii) amend, modify or waive any provision of Section 10.1 or any other provision of any Loan in respect Document that affects the Administrative Agent without the written consent of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth(viii) amend, if so determined by modify or waive any provision of Section 2.3 without the written consent of the Swingline Lender; or (ix) amend, modify or waive any provision of Section 2.4 without the written consent of the L/C Issuer. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall be restored to their former position and rights hereunder and under the other Loan Documents, 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. Notwithstanding anything in this Agreement or any other Loan Document to the contrary, the Borrower may enter into Incremental Facility Amendments in accordance with Section 2.21, and Extension Amendments in accordance with Section 2.22. Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Parent Borrower, Borrower (a) to be held in a deposit account and released pro rata in order add one or more additional credit facilities to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion to permit the extensions of Letter credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share in the benefits of this Agreement and the other Loan Documents with the Term Loans and Revolving Extensions of Credit Obligations and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Majority Facility Lenders. In addition, notwithstanding the foregoing, this Agreement may be amended with respect the written consent of the Agents, Holdings, the Borrower and the Lenders providing the relevant Replacement Term Loans to future Letters permit the refinancing of Credit issued under this Agreement; sixth, to the payment all or any portion of outstanding Term Loans or any amounts owing to the Non-Defaulting Lenders or the Issuers as tranche thereof (“Refinanced Term Loans”) with a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdictionreplacement term loan tranche hereunder (“Replacement Term Loans”); provided that if (xa) such payment is a payment of the aggregate principal amount of any such Replacement Term Loans or Reimbursement Obligations in respect shall not exceed the aggregate principal amount of which such Defaulting Lender has Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not fully funded its appropriate sharebe higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (yd) all other terms applicable to such Replacement Term Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed substantially identical to, all Non-Defaulting or less favorable to the Lenders on a pro rata basis providing such Replacement Term Loans than those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to being applied such refinancing. In addition, notwithstanding anything to the payment contrary contained herein, if following the Closing Date, the Administrative Agent and the Borrower shall have jointly identified any error or omission of a technical or immaterial nature, in each case, in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any Loans of, other party to this Agreement or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations any other Loan Document if the same is not objected to in Letters of Credit and Swingline Loans are held writing by the Required Lenders pro rata in accordance within five Business Days following receipt of notice thereof. It is understood that posting such amendment electronically on IntraLinks/IntraAgency with notice of such posting by the Revolving Credit Commitments without giving effect Administrative Agent to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) the Required Lenders shall be deemed paid to adequate receipt of notice of such amendment. reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and redirected one day after the payment in full of the latest maturing commercial paper note issued by such Defaulting Conduit Lender; provided, and however, that each Lender irrevocably consents heretodesignating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.
Appears in 1 contract
Samples: First Lien Credit Agreement (SRAM International Corp)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Borrower from, any provision of principalthis Agreement or any other Credit Document, interest, fees shall be effective unless in a writing signed by the Required Lenders (or other amounts received by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account of specific purpose for which given; provided, however, that no such Defaulting amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (whether voluntary i) reduce or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan, reduce the rate of or Reimbursement forgive any interest thereon, or reduce or forgive any fees or other Obligations in respect of which such Defaulting Lender has not fully funded (other than fees payable to the Administrative Agent for its appropriate shareown account), and or (yii) such Loans were made extend the Revolving Credit Maturity Date or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent to each Extension of Credit) were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to any other scheduled date for the payment of any Loans ofprincipal of or interest on any Loan (other than additional interest payable under SECTION 2.8(B) at the election of the Required Lenders, as provided therein), any fees (other than fees payable to the Administrative Agent for its own account) or Reimbursement Obligations owed toany other Obligations;
(b) unless agreed to by all of the Lenders, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with (i) increase or extend the Revolving Credit Commitment of any Lender (it being understood that a waiver of any Event of Default, if agreed to by the requisite Lenders hereunder, shall not constitute such an increase), (ii) change the percentage of the aggregate Revolving Credit Commitments without giving effect or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to clause take or approve, or direct the Administrative Agent to take, any action hereunder (iincluding as set forth in the definition of "Required Lenders"), (iii) above. Any paymentsexcept as may be otherwise specifically provided in this Agreement or in any other Credit Document, prepayments release all or other amounts paid substantially all of the Collateral, release Matria from its obligations under its guaranty contained in ARTICLE XI, or payable release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, (iv) change any provision of SECTION 2.15 or this Section, or (v) extend the expiry date of any Letter of Credit beyond the seventh day prior to a Defaulting Lender that are applied the Revolving Credit Maturity Date; and 101 108
(or heldc) unless agreed to pay amounts owed by a Defaulting the Issuing Lender, the Swingline Lender or the Administrative Agent in addition to post cash collateral pursuant the Lenders required as provided hereinabove to this Section 2.21(a)(ii) shall be deemed paid to and redirected by take such Defaulting action, affect the respective rights or obligations of the Issuing Lender, the Swingline Lender or the Administrative Agent, as applicable, hereunder or under any of the other Credit Documents; and each Lender irrevocably consents heretoprovided further that the Fee Letter may be amended or modified, and any rights thereunder waived, in a writing signed by the parties thereto.
Appears in 1 contract
Amendments, Waivers, Etc. Any payment of principal, interest, fees (a) No amendment or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events of Default) or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment waiver of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuing), to the funding provision of any Loan Document and no consent to any departure by any Loan Party therefrom shall be effective unless the same shall be in respect writing and signed (i) in the case of which such Defaulting Lender has failed an amendment, consent or waiver to fund its portion thereof as required by this Agreementcure any ambiguity, as determined by omission, defect or inconsistency or granting a new Lien for the Administrative Agent; fifthbenefit of the Secured Parties or extending an existing Lien over additional property, if so determined by the Administrative Agent and the Parent Borrower, (ii) in the case of any other waiver or consent, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and (iii) in the case of any other amendment, by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and Borrower; provided, however, that amendments to be held or waivers of any provision of the Fee Letter, the Control Agreements, the Landlord Waiver and the L/C Reimbursement require only the written consent of the Borrower, the Administrative Agent and any third parties thereto, and provided, further, that no amendment, consent or waiver described in clause (ii) or (iii) above shall, unless in writing and signed by each Lender directly affected thereby (or by the Administrative Agent with the consent of such Lender), in addition to any other Person the signature of which is otherwise required pursuant to any Loan Document, do any of the following:
(i) waive any condition specified in Section 3.1, except any condition referring to any other provision of any Loan Document;
(ii) increase the Commitment of such Lender or subject such Lender to any additional obligation;
(iii) reduce (including through release, forgiveness, assignment or otherwise) (A) the principal amount of, the interest rate on, or any obligation of Borrower to repay (whether or not on a deposit account and released pro rata in order fixed date), any outstanding Loan owing to such Lender, (B) any fee or accrued interest payable to such Lender or (C) if such Lender is a Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of Borrower to repay (whether or not on a fixed date) any L/C Reimbursement Obligation; provided, however, that this clause (iii) does not apply to (x) satisfy any change to any provision increasing any interest rate or fee during the continuance of an Event of Default or to any payment of any such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and increase or (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing modification to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Reimbursement Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions financial covenant set forth in Article V or in any definition set forth therein or principally used therein;
(iv) waive or postpone any scheduled maturity date or other scheduled date fixed for the payment, in whole or in part, of principal of or interest on any Loan or fee owing to such Lender or for the reduction of such Lender's Commitment; provided, however, that this clause (iv) does not apply to any change to mandatory prepayments required by Section 4.2 2.8(b) or Section 2.8(c)(ii);
(Conditions Precedent to each Extension v) except as provided in Section 11.10, release all or substantially all of Credit) were satisfied the Collateral or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment any Guarantor from its guaranty of any Loans of, Obligation of Borrower;
(vi) reduce or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters increase the proportion of Credit and Swingline Loans are held by Lenders required for the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause (i) above. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or heldany subset thereof) to pay amounts owed by a Defaulting Lender take any action hereunder or to post cash collateral pursuant to change the definition of the terms "Required Lenders", "Pro Rata Share" or "Pro Rata Outstandings"; or
(vii) amend Section 11.10 (Release of Collateral or Guarantor), Section 12.9 (Sharing of Payments) or this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.12.1;
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (PROS Holdings, Inc.)
Amendments, Waivers, Etc. Any payment No amendment, modification, waiver or discharge or termination of, or consent to any departure by any Credit Party from, any provision of principal, interest, fees this Agreement or any other amounts received Credit Document shall be effective unless in a writing signed by the Required Lenders (or by the Administrative Agent at the direction or with the consent of the Required Lenders), and then the same shall be effective only in the specific instance and for the account specific purpose for which given; provided, however, that no such amendment, modification, waiver, discharge, termination or consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) increase or extend any Commitment of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 (Events it being understood that a waiver of any Event of Default) or otherwise) or received , if agreed to by the Administrative Agent from a Defaulting Lender pursuant to Section 10.6 Required Lenders or all Lenders (Right of Set-off) shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuer or Swingline Lender hereunder; third, to Cash Collateralize the Issuers’ Fronting Exposure required hereunder with respect to such Defaulting Lender in accordance with Section 2.20 (Cash Collateral); fourth, as the Parent Borrower may request (so long as no Default or Event of Default has occurred and is continuingDefault), to the funding of any Loan in respect of which shall not constitute such Defaulting Lender has failed to fund its portion thereof as required by this Agreementan increase), as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Parent Borrower, to be held in a deposit account and released pro rata in order to (xii) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize such Defaulting Lender’s Ratable Portion of Letter of Credit Obligations with respect to future Letters of Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Non-Defaulting Lenders reduce or the Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Non-Defaulting Lender or Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default has occurred and is continuing, to the payment of any amounts owing to any Borrower as a result of any judgment of a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of forgive the principal amount of any Loans Loan or Reimbursement Obligation, reduce the rate of or forgive any interest thereon, or reduce or forgive any fees or other Obligations (other than fees payable to the Administrative Agent, the Arranger or the Issuing Lender for its own account), (iii) extend the Term A Loan Maturity Date, the Term A-1 Loan Maturity Date, the Revolving Credit Maturity Date or any other scheduled date for the payment of any principal of or interest on any Loan (other than in respect connection with a mandatory prepayment of which the Loans pursuant to Sections 2.6(e) through 2.6(g)) or reduction or termination of the Revolving Credit Commitments in connection therewith), extend the time of payment of any Reimbursement Obligation or any interest thereon or extend the time of payment of any fees hereunder (other than fees payable to the Administrative Agent, the Arranger or the Issuing Lender for its own account), or (iv) modify the amortization schedules set forth in Section 2.6(a) or Section 2.6(b) or the amortization of any Incremental Term Loan;
(b) unless agreed to by all of the Lenders, (i) change the percentage of the aggregate Commitments or of the aggregate unpaid principal amount of the Loans, or the number or percentage of Lenders, that shall be required for the Lenders or any of them to take or approve, or direct the Administrative Agent to take, any action hereunder or under any other Credit Document (including as set forth in the definition of “Required Lenders”), (ii) except as may be otherwise specifically provided in this Agreement or in any other Credit Document, release all or substantially all of the Collateral or release any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, (iii) change any other provision of this Agreement or any of the other Credit Documents requiring, by its terms, the consent or approval of all the Lenders for such Defaulting Lender has not fully funded its appropriate shareamendment, and modification, waiver, discharge, termination or consent, (iv) change or waive any provision of Section 2.15, any other provision of this Agreement or any other Credit Document requiring pro rata treatment of any Lenders, or this Section 11.6, or (v) change or waive Section 2.10 to permit any Interest Period of greater than six months’ duration unless such Interest Period is subject to the agreement of all of the Lenders;
(c) unless agreed to by (i) all of the Revolving Credit Lenders, (y) such Loans were made extend the expiry date of any Letter of Credit beyond the Letter of Credit Maturity Date or (z) change the percentage set forth in the definition of “Required Revolving Credit Lenders” (it being understood that no consent of any other Lender or the related Letters Administrative Agent is required), or (ii) the Required Revolving Credit Lenders, (y) change any other provision of Article III or any other terms or provisions of, or any other terms or provisions of any Credit Document relating to, any Letter of Credit, or (z) amend, modify or waive any condition precedent to any Borrowing of Revolving Loans or issuance of a Letter of Credit were issued at a time when the conditions set forth in Section 4.2 (Conditions Precedent including in connection with any waiver of an existing Default or Event of Default); and
(d) unless agreed to each Extension of Credit) were satisfied by the Issuing Lender, the Swingline Lender or waived, such payment shall be applied solely to pay the Loans of, and Reimbursement Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied Administrative Agent in addition to the payment Lenders required as provided hereinabove to take such action, affect the respective rights or obligations of the Issuing Lender, the Swingline Lender or the Administrative Agent, as applicable, hereunder or under any Loans of, or Reimbursement Obligations owed to, such Defaulting Lender until such time as all Loans of the other Credit Documents; and funded and unfunded participations in Letters of Credit and Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Credit Commitments without giving effect to clause provided further that (i) above. Any if any amendment, modification, waiver or consent would adversely affect the holders of Loans of a particular Class (the “affected Class”) relative to holders of Loans of another Class (including, without limitation, by way of reducing the relative proportion of any payments, prepayments or other amounts paid Commitment reductions to be applied for the benefit of holders of Loans of the affected Class under Sections 2.6(e) through 2.6(g), then such amendment, modification, waiver or payable to consent shall require the consent of Lenders holding at least a Defaulting Lender that are applied majority of the aggregate outstanding principal amount of all Loans (and unutilized Commitments, if any) of the affected Class, (ii) the Fee Letter may only be amended or heldmodified, and any rights thereunder waived, in a writing signed by the parties thereto, (iii) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting the Administrative Agent may, without the consent of any Lender, amend or modify any provision of this Agreement or any other Credit Document if the effect of such amendment or modification is strictly technical or correctional in nature and each Lender irrevocably consents heretodoes not affect any substantive rights of any other party hereto or thereto, and (iv) this Agreement and the other Credit Documents may be amended or modified with the consent of the Borrower and the Administrative Agent to give effect to any Revolving Credit Commitment Increase or Incremental Term Loans as set forth in Sections 2.20 and 2.21.
Appears in 1 contract
