CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be taken, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, 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 Borrowers 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), only with the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.
Appears in 2 contracts
Samples: Global Revolving Credit Agreement (Ryder System Inc), Global Revolving Credit Agreement (Ryder System Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Credit Agreement, any consent or approval required or permitted by this Credit Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, any other Loan Document or any other instrument, document or agreement related to this Credit Agreement or of any of the other Loan Documents or mentioned therein may be amended, and the performance or observance by the Borrowers any Borrower or any other Person Guarantor of any terms of this Credit Agreement or the terms thereof and other Loan Documents or the continuance of any default, 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)) with, but only with with, the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects Required Lenders. Notwithstanding the rights, duties or liabilities of any Agentforegoing, the Issuing Bankunanimous consent of the Lenders under the Term Loan or the Revolving Credit Loan, or any Swing Line Lenderas applicable, solely to the extent that such Lenders are directly affected thereby, shall be effective without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no required for any amendment, modification or waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: this Credit Agreement that:
(i) waive reduces or forgives any condition set forth in §11principal of any unpaid Loan or Reimbursement Obligations or any interest thereon (including any interest "breakage" costs) or any fees due any Lender hereunder; or
(ii) change changes the definition unpaid principal amount of, or the rate of “Majority Banks”interest on, any Loan; or
(iii) amend this §17; or (iv) release changes the date fixed for any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect payment of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance Loan (including, without limitation, interest on overdue amountsany extension of any Maturity Date, except for the one-year extension thereof as permitted under §2.10 hereof) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, or
(iv) alter changes the amount of any provision relating Lender's Commitment (other than pursuant to an assignment permitted under §19.1 hereof) or increases the pro rata treatment amount of the Banks Total Revolving Credit Commitment (except for the increases in the Total Revolving Credit Commitment to an amount not to exceed $175,000,000 as required hereby or provided in §2.11); or
(v) extend or postpone any date fixed for any payment in with respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary hereinLenders under the Term Loan, no Defaulting Bank any alteration to §3.5 hereof; provided that Unanimous Lender Approval shall have any right to approve or disapprove be required for any amendment, modification or waiver of this Credit Agreement that:
(1) releases or consent hereunder reduces the liability of any Guarantor pursuant to its Guaranty other than as provided in §6; or
(and 2) modifies this §26 or any amendment, waiver other provision herein or consent in any other Loan Document which by its the terms thereof expressly requires Unanimous Lender Approval; or
(3) changes the consent definitions of all Banks Required Lenders or each affected Bank may be effected with Unanimous Lender Approval. provided that no such agreement shall amend, modify or otherwise affect the consent rights or duties of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended Administrative Agent hereunder without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the prior written consent of the Majority Banks, Administrative 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 Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination part of the Majority Banks, and (2) Administrative Agent or the Lenders or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial to change, modify such right or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any other rights of the amendments (Administrative Agent or amendments and restatements) enumerated the Lenders. No notice to or demand upon any Borrower shall entitle any Borrower to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Sovran Self Storage Inc), Revolving Credit and Term Loan Agreement (Sovran Acquisition LTD Partnership)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement may be given, and any term of this Agreement or of any other Loan Document to be given by the Banks may be given, 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 Borrowers or any other Person Borrower of any terms of this Agreement or such other Loan Document or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects Required Lenders. Notwithstanding the rights, duties or liabilities foregoing provisions of any Agent, this Section:
(a) none of the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personeach affected Lender:
(i) a decrease in the rate of interest on the Notes;
(ii) an increase in the amount of the Commitments of Lenders;
(iii) a forgiveness, as applicable; provided, further, that, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents (xother than in connection with the imposition or rescission of the Default Rate);
(iv) a decrease in the amount of any fee payable to a Lender hereunder;
(v) the Domestic Swing Line Commitment release of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by RyderBorrower, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver any guarantor or consent shall do any of the following unless in writing and signed by Collateral except as otherwise provided herein;
(avi) each Bank: (i) waive any condition set forth in §11; (ii) a change the definition of “Majority Banks”; (iii) amend to this §17; or 27;
(ivvii) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect postponement of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on, or fees in respect of, the Loans;
(viii) any change in the manner of principal distribution of any payments to Lenders or interest Agent;
(including, without limitation, interest on overdue amountsix) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent an amendment of the applicable Banks other than Defaulting Banks), except that definitions of Required Lenders or Supermajority Lenders or of any requirement for consent by all of Lenders; or
(x) the Commitment an amendment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect all of Lenders or the Required Lenders to require a lesser number of Lenders to approve such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveaction.
Appears in 2 contracts
Samples: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement may be given, and any term of this Agreement or of any other Loan Document to be given by the Banks may be given, 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 Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects Required Lenders. Notwithstanding the rights, duties or liabilities foregoing provisions of any Agent, this Section:
(a) none of the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personeach affected Lender:
(i) a decrease in the rate of interest on the Notes;
(ii) an increase in the amount of the Revolving Commitments of Lenders;
(iii) a forgiveness, as applicable; provided, further, that, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents (xother than in connection with the imposition or rescission of the Default Rate);
(iv) a decrease in the amount of any fee payable to a Lender hereunder;
(v) the Domestic Swing Line Commitment release of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by RyderBorrower, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver any guarantor or consent shall do any of the following unless in writing and signed by Collateral except as otherwise provided herein;
(avi) each Bank: (i) waive any condition set forth in §11; (ii) a change the definition of “Majority Banks”; (iii) amend to this §17; or 27;
(ivvii) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect postponement of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on, or fees in respect of, the Loans;
(viii) any change in the manner of principal distribution of any payments to Lenders or interest Agent;
(including, without limitation, interest on overdue amountsix) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent an amendment of the applicable Banks other than Defaulting Banks), except that definition of Required Lenders or of any requirement for consent by all of Lenders; or
(x) the Commitment an amendment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect all of Lenders or the Required Lenders to require a lesser number of Lenders to approve such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveaction.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of 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 Borrowers Borrower or the Guarantors of any terms of this Agreement or any other Person Loan Document or the continuance 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personthe Required Lenders, as applicable; provided, further, that, (x) a modification or waiver of the Domestic Swing Line Commitment definition of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver Unencumbered Pool Availability or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in in, §11; (ii) change 8.1 or §8.8. Notwithstanding the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryderforegoing, in its capacity as guarantor, from its obligations under §5 hereof or in respect none of the Guaranteed Obligations; or (b) following may occur without the written consent of each of the Banks Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.8 and §13.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a reduction in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bank, payments to the Lenders or the Agent; (h) the release of the Borrower or substantially all of the Guarantors except pursuant as otherwise provided in this Agreement; (i) an amendment of the definition of Majority Lenders or Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 14.9; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders or (v) extend or postpone any date fixed for any payment in respect the Majority Lenders to require a lesser number of principal or interest (including, Lenders to approve such action. The provisions of Article XII may not be amended without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderwritten consent of the Agent. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended increased, nor may the Maturity Date with respect to the Commitment of a Defaulting Lender be extended, in each case, without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, The Agent and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) permitted to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in amend any provision of the Loan Documents, then the Agents and the Borrowers shall be permitted to amend such provision Documents (and such amendment shall become effective without any further action or consent of any other party to any Loan Documents Document) if the same is not objected Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision. The Borrower and the Guarantors agree to in writing by the Majority Banks within five (5) Domestic Business Days following receipt enter into such modifications or amendments of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and or the other Loan Documents at as reasonably may be requested by KeyBank and the time Arrangers in connection with the syndication of the Loan, provided that no such amendment, amendment and restatement or modification materially affects or increases any of the obligations of the Borrower or the Guarantors hereunder. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower or the Guarantors shall entitle the Borrower or the Guarantors to other or further notice or demand in similar or other modification becomes effectivecircumstances.
Appears in 2 contracts
Samples: Term Credit Agreement, Term Credit Agreement (STORE CAPITAL Corp)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personthe Required Lenders, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment a modification or waiver of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment definition of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver Borrowing Base Availability or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in in, §11; (ii) change 8.7, §9.1, §9.2, §9.3, §9.4, §9.5, §9.6, §9.7, §9.8, §9.9, §9.10 or §9.11. Notwithstanding the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryderforegoing, in its capacity as guarantor, from its obligations under §5 hereof or in respect none of the Guaranteed Obligations; or (b) following may occur without the written consent of each of the Banks Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders or Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders or (v) extend the Majority Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or postpone waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any payment amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment Lender. The Borrower agrees to enter into such modifications or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arranger in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 2 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.), Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent modification or amendment which affects waiver of the rights, duties or liabilities definition of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective Pool Availability may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lenderthe Required Lenders. Notwithstanding the foregoing, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any none of the following unless in writing and signed by may occur without the written consent of: (a) in the case of a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest), the consent of each Bank: (i) waive any condition set forth in §11Lender holding a Note affected by such interest rate reduction; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each in the case of an increase in the amount of the Banks directly affected thereby: Revolving Credit Commitment or Term Loan Commitment of the Lenders (iexcept as provided in §2.11 and §18.1), the consent of such Lender whose Commitment is increased; (c) in the case of any increase in the Total Commitment (other than in connection with an increase under §2.11), the consent of each Lender; (d) in the case of a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents, the consent of each Lender that would have otherwise received such principal, interest or fee; (e) in the case of a change in the amount of any fee payable to a Lender hereunder, the consent of each Lender to which such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment)fee would otherwise be owed; (iif) reduce in the case of the postponement of any date fixed for any payment of principal of or interest on the Loans Loan, the consent of each Lender that would otherwise have received such principal or interest at such earlier fixed date; (g) in the case of an extension of the Revolving Credit Maturity Date (except as provided in §2.12) or Term Loan A Maturity Date or Term Loan B Maturity Date, the consent of each Lender whose Commitment is thereby extended; (h) in the case of a change in the manner of distribution of any payments to the Lenders or the Agent, the consent of each Lender directly affected thereby; (i) in the case of the release of the Borrower, any Guarantor or any Collateral except as otherwise provided in this Agreement, the consent of each Lender; (j) in the case of an amendment of the definition of Required Lenders, the consent of each Lender, in the case of an amendment of the definition of Majority Revolving Credit Lenders, the consent of each Revolving Credit Lender, in the case of an amendment of the definition of Majority Term Loan A Lenders, the consent of each Term Loan A Lender, in the case of an amendment of the definition of Majority Term Loan B Lenders, the consent of each Term Loan B Lender and in the case of an amendment of any requirement for consent by all of the Lenders, the consent of each Lender; (k) in the case of any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage, the consent of each such Lender thereby required to fund a pro rata share other than based on its Commitment Percentage; (l) in the case of an amendment to this §27, each Lender directly affected directly thereby; or (m) in the case of an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of Lenders to approve such action, the consent of each Lender, in the case of an amendment of any provision of this Agreement or the Loan Documents which requires the approval of the Majority Revolving Credit Lenders to require a lesser number of Lenders to approve such action, the consent of each Revolving Credit Lender, in the case of amendment of any provision of this Agreement or the Loan Documents which requires the approval of the Majority Term Loan A Lenders to require a lesser number of Lenders to approve such action, the consent of each Term Loan A Lender, and in the case of amendment of any provision of this Agreement or the Loan Documents which requires the approval of the Majority Term Loan B Lenders to require a lesser number of Lenders to approve such action, the consent of each Term Loan B Lender; (n) in the case of an amendment or waiver of the conditions contained in §11 to all Revolving Credit Lenders making any Loan or issuing any Letter of Credit, L/C Obligations the consent of the Majority Revolving Credit Lenders; or any Bankers’ Acceptance (includingo) in the case of the issuance or an extension of a Letter of Credit beyond the Revolving Credit Maturity Date, the consent of each Revolving Credit Lender. The provisions of §14 may not be amended without limitationthe written consent of the Agent. There shall be no amendment, interest on overdue amounts) modification or any fees payable hereunder; (iii) change the Commitment Percentage waiver of any Bankprovision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, except pursuant to §2.4 nor any amendment, modification or §21, (iv) alter waiver of any provision relating in the Loan Documents with respect to Letters of Credit without the pro rata treatment consent of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationIssuing Lender. Any fee letter may be amended, or any fee hereunderrights or privileges thereunder waived, in a writing executed by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or or, except as provided in §2.12, extended without the consent of such Bank Lender, and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank more Lender disproportionately adversely than relative to other affected Banks Lenders shall require the consent of such Defaulting BankLender). The Borrower agrees to enter into such modifications or amendments of this Agreement or the other Loan Documents as reasonably may be requested by KeyBank, the Joint Arrangers, and the Bookrunner in connection with the syndication of the Loan, provided that no such amendment or modification materially affects or increases any of the obligations of the Borrower hereunder. Notwithstanding anything herein to the contrarycontrary in this Agreement, (A) in order to implement any additional Commitments in accordance with including this §2.1.527, this Agreement may be amended by Borrower and Agent to provide for such purpose (but solely any Commitment Increase in the manner contemplated by §2.11 and the extension of the Revolving Credit Maturity Date as provided in §2.12. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances. Further notwithstanding anything to the extent necessary to implement such additional Commitments contrary in accordance with this §2.1.5) by each Borrower27, if the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake, typographical error or other defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend amend, modify or supplement such provision and or provisions to cure such amendment ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment, modification or supplement shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.), Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedAgent and the Required Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time affected by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless following: a reduction in writing and signed by the rate of interest on the Loans; an increase in the amount of the Commitments of the Lenders (a) each Bank: (i) waive any condition set forth except as provided in §11; (ii) change the definition of “Majority Banks”; (iii) amend this 18.1 and §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment2.2); (ii) reduce a forgiveness, reduction or waiver of the principal of or interest on the Loans any unpaid Loan or any Letter interest thereon or fee payable under the Loan Documents; a change in the amount of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees fee payable to a Lender hereunder; (iii) change the Commitment Percentage postponement of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of and fees or any principal of or interest (including, without limitation, interest on overdue amounts) any Loan; an extension of the Maturity Date; the imposition of any additional restrictions on assignments and participations; a change in the Notes or manner of distribution of any L/C Obligation, or any fee hereunder. Notwithstanding anything payments to the contrary herein, no Defaulting Bank shall have Lenders or the Agent; any right modification to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent require a Lender to fund a pro rata share of all Banks or each affected Bank may be effected with the consent a request for an Advance of the applicable Banks Loan made by the Borrower other than Defaulting Banks), except that (x) the based on its Commitment Percentage; a waiver of any Defaulting Bank indemnity of a Lender. The provisions of §2.10 and §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksIssuing Lender or the Agent, respectively. Further notwithstanding the Agentsforegoing, each none of the following may occur without the written consent of 100% of the Lenders: the release of EPR or, except as permitted in connection with the removal of a Borrower-SPE and its properties from the Borrowing Base, and a Borrower-SPE; an amendment of the relevant Banks providing such additional credit facilities (1) to add one definition of Required Lenders or more additional credit facilities of any requirement for consent by all of the Lenders; an amendment of §13.1; an amendment to this Agreement, to permit the extensions §29; or an amendment of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits any provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination approval of all of the Majority Banks, and (2) Lenders or the Required Lenders to change, modify require a lesser number of Lenders to approve such action No waiver shall extend to or alter affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the provisions part of this Agreement relating the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to the pro rata sharing of payments among the Banks to the extent necessary to effectuate or demand upon any of the amendments (Borrower shall entitle the Borrower to other or amendments and restatements) enumerated further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 2 contracts
Samples: Master Credit Agreement (Entertainment Properties Trust), Master Credit Agreement (Entertainment Properties Trust)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement may be given, and any term of this Agreement or of any other Loan Document to be given by the Banks may be given, 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 Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects Required Lenders. Notwithstanding the rights, duties or liabilities foregoing provisions of any Agent, this Section:
(a) none of the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personeach affected Lender:
(i) a decrease in the rate of interest on the Notes;
(ii) an increase in the amount of the Commitments of Lenders;
(iii) a forgiveness, as applicable; provided, further, that, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents (xother than in connection with the imposition or rescission of the Default Rate);
(iv) a decrease in the amount of any fee payable to a Lender hereunder;
(v) the Domestic Swing Line Commitment release of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by RyderBorrower, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver any guarantor or consent shall do any of the following unless in writing and signed by Collateral except as otherwise provided herein;
(avi) each Bank: (i) waive any condition set forth in §11; (ii) a change the definition of “Majority Banks”; (iii) amend to this §17; or 27;
(ivvii) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect postponement of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on, or fees in respect of, the Loans;
(viii) any change in the manner of principal distribution of any payments to Lenders or interest Agent;
(including, without limitation, interest on overdue amountsix) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent an amendment of the applicable Banks other than Defaulting Banks), except that definition of Required Lenders or of any requirement for consent by all of Lenders; or
(x) the Commitment an amendment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect all of Lenders or the Required Lenders to require a lesser number of Lenders to approve such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveaction.
Appears in 2 contracts
Samples: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrower or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders; (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Credit Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Required Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding Further notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake, typographical error or other defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend amend, modify or supplement such provision and or provisions to cure such amendment ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment, modification or supplement shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 2 contracts
Samples: Credit Agreement (Plymouth Industrial REIT Inc.), Credit Agreement (Plymouth Industrial REIT Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter Collateral except as otherwise provided in this Agreement; (i) an amendment of Creditthe definition of Required Lenders or of any requirement for consent by all of the Lenders or all affected Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. Notwithstanding the foregoing, L/C Obligations no amendment of the definition of Super-Majority Lenders or any Bankers’ Acceptance (includingprovision of this Agreement which requires the approval of the Super-Majority Lenders to require a lesser number of Lenders to approve such action may occur without the written consent of the Super-Majority Lenders. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, without limitation, interest on overdue amounts) modification or any fees payable hereunder; (iii) change the Commitment Percentage waiver of any Bankprovision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, except pursuant to §2.4 nor any amendment, modification or §21, (iv) alter waiver of any provision relating in the Loan Documents with respect to Letters of Credit without the pro rata treatment consent of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderIssuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and KBCM in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 2 contracts
Samples: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken Except as otherwise expressly provided in this Agreement (including the giving of notice) may be takenincluding, without limitation, §2.13), any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicableeach Lender adversely affected thereby: (a) a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest); provided, further, that, (xb) any increase or reduction in the Domestic Swing Line amount of the Commitment of a Domestic Swing Line Lender reflected (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on Schedule 1 the Loan or any fees payable under the Loan Documents; (f) an extension of the Maturity Date; (g) a change in the manner of distribution of any payments to Lenders or Agent; (h) the release of any Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all Lenders; (j) [reserved]; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all Lenders or the Required Lenders, or to require a lesser number of Lenders to approve such action. TheNotwithstanding the foregoing, the provisions of §14 may not be amended from time to time by Ryder, without the Administrative written consent of Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following shall, unless in writing and signed by (a) each Bank: (i) Agent in addition to the Lenders required above to take such action, amend, waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank consent to any additional obligationsdeparture from, including the extension definitions of such Bank’s CommitmentICE LIBOR, LIBOR Screen Rate, Successor Rate Conforming Changes or the provisions of §4.6(b) (except in accordance with §4.6(b); (ii) reduce the principal ). No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or interest delay or omission on the Loans part of Agent or any Letter of Credit, L/C Obligations Lender in exercising any right shall operate as a waiver thereof or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank affectedAffected Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank affectedAffected Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks affectedAffected Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein In the event that any Lender (a “Non-Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F)Required Lenders, (G) if following the Closing Date, the Agents and then the Borrowers shall have jointly identified the right, upon written demand to such Non-Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non-Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an inconsistencyexisting Lender or a new Lender, obvious error or omission, in each case, provided that (i) as of a technical or immaterial nature, in any provision such Consent Request Date and as of the Loan Documentsdate of the Borrowers’ written demand to replace such Non-Consenting Lender, then no Default or Event of Default shall have occurred and be continuing other than a Default or Event of Default that resulted solely from the Agents subject matter of the waiver NYDOCS03/1106944.11106944.3 or amendment for which such consent was being solicited from the Lenders by Agent and (ii) the Borrowers replacement of any Non-Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non-Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
Samples: Term Loan Agreement (Independence Realty Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of or interest on the Loans any unpaid Loan or any Letter interest thereon or fee payable under the Loan Documents; (d) a reduction of Credit, L/C Obligations a fee or change in the amount of any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees fee payable to a Lender hereunder; (iiie) change the Commitment Percentage postponement of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal of or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationLoan, or any fee payable to the affected Lenders (excluding any fee payable to any arranger or the Agent in its capacity as administrative agent hereunder); (f) an extension of the Maturity Date; (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of any Borrower, any Guarantor or any Collateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders, the Required Lenders, or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender, and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender). Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) Any amendment of the Bankruptcy Code QTLP Subordination and Standstill Agreement or waiver of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks terms thereof shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with require the written consent of the Majority Banks, Required Lenders. 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 Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination part of the Majority Banks, and (2) Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate demand upon any of the amendments (Borrowers or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and Guarantors shall entitle the Borrowers shall have jointly identified an inconsistency, obvious error or omission, the Guarantors to other or further notice or demand in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be taken, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, 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 Borrowers 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), only with the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.
Appears in 1 contract
Samples: Global Revolving Credit Agreement (Ryder System Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be taken, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, 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 Borrowers 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), only with the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §§2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.
Appears in 1 contract
Samples: Global Revolving Credit Agreement (Ryder System Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personthe Required Lenders, as applicable; provided, further, that, (x) a modification or waiver of the Domestic Swing Line Commitment definition of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver Unencumbered Pool Availability or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in in, §11; (ii) change 8.1 or §8.8. Notwithstanding the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryderforegoing, in its capacity as guarantor, from its obligations under §5 hereof or in respect none of the Guaranteed Obligations; or (b) following may occur without the written consent of each of the Banks Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §13.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) change an extension of the Commitment Percentage Maturity Date (other than an extension of any Bank, except the Maturity Date pursuant to §2.4 2.9); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or the Guarantors except as otherwise provided in this Agreement; (i) an amendment of the definition of Majority Lenders or Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §21, 14.9; or (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders or (v) extend or postpone any date fixed for any payment in respect the Majority Lenders to require a lesser number of principal or interest (including, Lenders to approve such action. The provisions of Article XII may not be amended without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderwritten consent of the Agent. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended increased, nor may the Maturity Date with respect to the Commitment of a Defaulting Lender be extended, in each case, without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, The Borrower and the applicable Banks providing Guarantors agree to enter into such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arranger in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower or the Agents and Guarantors hereunder. 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 Borrowers part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower or the Guarantors shall become effective without any entitle the Borrower or the Guarantors to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of any Borrower or any Letter of CreditCollateral except as otherwise provided in §5.4, L/C Obligations §5.6 or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder§5.7; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders, Required Lenders or of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed requirement for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, Lenders; (Fj) this Agreement may be amended (or amended and restated) with the written consent any modification to require a Lender to fund a pro rata share of a request for an advance of the Majority Banks, Loan made by the Agents, each Borrower, and the relevant Banks providing such additional credit facilities Borrowers other than based on its Commitment Percentage; (1k) to add one or more additional credit facilities an amendment to this Agreement, to permit the extensions §27; or (l) an amendment of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits any provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination approval of all of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing DateLenders, the Agents and Majority Lenders or the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, Required Lenders to require a lesser number of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers shall be permitted Lenders to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.approve such
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bank, payments to the Lenders or the Agent; (h) the release of the Borrower or all or substantially all of the Guarantors except pursuant as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) [intentionally omitted]; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing Agent. The Borrower agrees to enter into such additional credit facilities (1) to add one modifications or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arranger in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of noticea) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bankof: (i) waive any condition set forth in §11the case of a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest), the consent of each Lender holding a Note affected by such interest rate reduction; (ii) change in the definition case of “Majority Banks”an increase in the Commitment or the amount of the Commitments of the Lenders (in each case, except as provided in §2.11 and §18.1), the consent of each Lender whose Commitment is increased; (iii) amend this §17in the case of a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents, the consent of each Lender that would have otherwise received such principal, interest or fee; or (iv) release in the case of a change in the amount of any Borrower from its Obligations or release Ryderfee payable to a Lender hereunder, the consent of each Lender to which such fee would otherwise be owed; (v) in its capacity as guarantor, from its obligations under §5 hereof or in respect the case of the Guaranteed Obligations; or (b) each postponement of the Banks directly affected thereby: (i) increase the principal amount any date fixed for any payment of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans Loan, the consent of each Lender that would otherwise have received such principal or interest at an earlier date; (vi) in the case of an extension of the Revolving Credit Maturity Date (except as provided in §2.12) each Lender whose Commitment is thereby extended; (vii) in the case of a change in the manner of distribution of any payments to the Lenders or the Agent, the consent of each Lender or the Agent directly affected thereby; (viii) in the case of the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance Collateral except as otherwise provided in this Agreement (including, without limitation, interest on overdue amounts) or the release of any fees payable hereunderBorrowing Base Assets), each Lender directly affected thereby; (iiiix) change in the Commitment Percentage case of an amendment of the definition of Required Lenders or of any Bankrequirement for consent by all of the Lenders or all affected Lenders, except pursuant each Lender directly affected thereby; (x) in the case of any modification to require a Lender to fund a pro rata share of a request for an advance of a Loan made by the Borrower other than based on such Lender’s applicable Commitment Percentage, the consent of each such Lender thereby required to fund a pro rata share other than based on its applicable Commitment Percentage; (xi) in the case of an amendment to this §2.4 27, each Lender directly affected thereby; or §21, (ivxii) alter in the case of an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders, to require a lesser number of principal or interest (includingLenders to approve such action, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationeach Lender directly affected thereby. Any fee letter may be amended, or rights or privileges thereunder waived, in a writing executed by the parties thereto. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any fee hereunderprovision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances.
(b) Further notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake or defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend such provision and or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrower or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders; (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral (except as permitted or required under §5.4 and §5.5); (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Required Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding Further notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake, typographical error or other defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend amend, modify or supplement such provision and or provisions to cure such amendment ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment, modification or supplement shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person Guarantor of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of Borrower, Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral; (iiii) change an amendment of the Commitment Percentage definition of Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationLenders, or any fee hereunder. Notwithstanding anything the Required Lenders to the contrary herein, no Defaulting Bank shall have any right require a lesser number of Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, Agent. Borrower and the relevant Banks providing Guarantor agree to enter into such additional credit facilities (1) to add one modifications or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (obligations of Borrower hereunder. No waiver shall extend to or amendments and restatements) enumerated affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the part of Agent or any Lender in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers exercising any right shall have jointly identified an inconsistency, obvious error operate as a waiver thereof or omission, otherwise be prejudicial thereto. No notice to or demand upon any of Borrower or Guarantor shall entitle Borrower or Guarantor to other or further notice or demand in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: (i) waive any condition set forth a reduction in §11the rate of interest on the Notes; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in § 2.10 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in § 2.11); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Letter of Credit, L/C Obligations Guarantor or any Bankers’ Acceptance (includingCollateral except as otherwise provided in §5.4, without limitation§5.6, interest on overdue amounts) §5.7 or any fees payable hereunder§14.12; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders, Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Majority Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. The Borrower agrees to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon any of the Borrower or the Guarantors shall become effective without entitle the Borrower or any Guarantor to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Republic Property Trust)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Credit 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 Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent or approval of the Majority Required Banks; provided, however, that no and in such case such consent or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, approval shall be effective binding on all Banks. Notwithstanding the foregoing provisions of this Section:
(a) none of the following may occur without the written consent of such Person, as applicable; provided, further, that, each Bank directly affected thereby:
(xi) an increase in the Domestic Swing Line Commitment amount of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender Bank;
(ii) a forgiveness, reduction or waiver of any unpaid Obligations owing to such Bank or any interest thereon or fee payable to such Bank under the Credit Documents (other than in effect from time connection with the imposition or rescission of the Late Charge or Default Rate);
(iii) a decrease in the amount of any fee payable to time, and such Bank hereunder;
(yiv) an extension of a Maturity Date except as provided in §3.1(b) with respect to the Maturity Date;
(v) the L/C Commitment release of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver Borrower or consent shall do any of the following unless in writing and signed by Cash Collateral except as otherwise provided herein;
(avi) each Bank: (i) waive any condition set forth in §11; (ii) a change the definition of “Majority Banks”; (iii) amend to this §17; or 25;
(ivvii) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect postponement of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on, or fees in respect of, the Letters of principal or interest (including, without limitation, interest on overdue amountsCredit owing to such Bank except as provided in §3.1(b) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything with respect to the contrary herein, no Defaulting Bank shall have Maturity Date;
(viii) any right change in the manner of distribution of any payments to approve such Bank;
(ix) an amendment of the definition of Required Banks or disapprove of any amendment, waiver requirement for consent by all Banks; or
(x) an amendment of any provision of this Agreement or consent hereunder (and any amendment, waiver or consent the Credit Documents which by its terms requires the consent approval of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Required Banks to the extent necessary require a lesser number of Banks to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers shall be permitted to amend approve such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveaction.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Forestar Group Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken Except as otherwise expressly provided in this Agreement (including the giving of notice) may be takenincluding, without limitation, §2.13), any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicableeach Lender adversely affected thereby: (a) a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest); provided, further, that, (xb) any increase or reduction in the Domestic Swing Line amount of the Commitment of a Domestic Swing Line Lender reflected (except as provided in §2.4, §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on Schedule 1 the Loan or any fees payable under the Loan Documents (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (f) an extension of the Maturity Date (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (g) a change in the manner of distribution of any payments to Lenders or Agent; (h) the release of any Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all Lenders; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. Notwithstanding the foregoing, the provisions of §14 may not be amended from time to time by Ryder, without the Administrative written consent of Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following shall, unless in writing and signed by Agent in addition to the Lenders required above to take such action, amend, waive or consent to any departure from, the definitions of ICE LIBOR, LIBOR Screen Rate, Successor Rate Conforming Changes or the provisions of §4.6(b) (a) each Bank: (i) waive except in accordance with §4.6(b)). There shall be no amendment, modification or waiver of any condition set forth provision in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in Loan Documents with respect to Swing Loans without the consent of the Guaranteed Obligations; Swing Loan Lenders, nor any amendment, modification or (b) each waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Banks directly affected thereby: (i) increase the principal amount Issuing Lenders. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of such Bank’s Commitment (dealing or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of delay or interest omission on the Loans part of Agent or any Letter of Credit, L/C Obligations Lender in exercising any right shall operate as a waiver thereof or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Affected Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Affected Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Affected Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein In the event that any Lender (a “Non‑Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F)Required Lenders, (G) if following the Closing Date, the Agents and then the Borrowers shall have jointly identified the right, upon written demand to such Non‑Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non‑Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an inconsistencyexisting Lender or a new Lender, obvious error or omission, in each case, provided that (i) as of a technical or immaterial nature, in any provision such Consent Request Date and as of the Loan Documentsdate of the Borrowers’ written demand to replace such Non‑Consenting Lender, then no Default or Event of Default shall have occurred and be continuing other than a Default or Event of Default that resulted solely from the Agents subject matter of the waiver or amendment for which such consent was being solicited from the Lenders by Agent and (ii) the Borrowers replacement of any Non‑Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non‑Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of or interest on the Loans any unpaid Loan or any Letter interest thereon or fee payable under the Loan Documents; (d) a reduction of Credit, L/C Obligations a fee or change in the amount of any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees fee payable to a Lender hereunder; (iiie) change the Commitment Percentage postponement of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal of or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationLoan, or any fee payable to the affected Lenders (excluding any fee payable to any arranger or the Agent in its capacity as administrative agent hereunder); (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.15) or the Term Loan Maturity Date; (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or the removal of any Unencumbered Asset Pool Properties except as otherwise provided in §5.4, §5.5, §7.18(c) or §7.18(d); (i) an amendment of the definition of Majority Revolving Credit Lenders, Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Majority Revolving Credit Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders, the Required Lenders, the Majority Revolving Credit Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender, and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender). Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) Any amendment of the Bankruptcy Code Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreement or waiver of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks terms thereof shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with require the written consent of the Majority Banks, Required Lenders. 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 Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination part of the Majority Banks, and (2) Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate demand upon any of the amendments (Borrower or amendments and restatements) enumerated the Guarantors shall entitle the Borrower or the Guarantors to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent modification or amendment which affects waiver of the rights, duties or liabilities definition of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective Pool Availability may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) Required Lenders. Notwithstanding the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In additionforegoing, no amendment, modification or waiver or consent shall do of any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in §11; (ii) change 8.7 or §9.1-§9.12 may occur without the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect written consent of the Guaranteed Obligations; or (b) each Required Lenders. Notwithstanding the foregoing, none of the Banks following may occur without the written consent of each Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Revolving Credit Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the removal of any Pool Properties from the calculation of Pool Availability except as provided in this Agreement, or the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders or Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingLenders, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationRequired Lenders, or the Majority Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any fee hereunderprovision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Revolving Credit Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender, and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arranger in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as set forth in this §27 or as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors, if any, of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal rate of interest on the Loans (other than a reduction or waiver of interest at the Default Rate, a retraction of the imposition of interest at the Default Rate or any amendment of the amount constituting interest at the Default Rate pursuant to the final sentence of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentthis §27); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.10 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (d) a reduction in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.11); (g) an amendment to §2.13 or §12.5,; (h) the release of the Borrower or any Guarantor, if any, except as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders or all Lenders directly affected thereby; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower or participation in a Letter of Credit, L/C Obligations Credit other than based on its Commitment Percentage; (k) an amendment to this §27; (l) a waiver of any Default or any Bankers’ Acceptance (including, without limitation, interest on overdue amountsEvent of Default under §12.1(a) or any fees payable hereunder§12.1(b); or (iiim) change the Commitment Percentage an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit or Issuing Lenders without the consent of the Issuing Lenders. There shall be no amendment, modification or waiver of any provision of the Loan Documents with respect to Swing Loans or Swing Loan Lenders without the consent of the Swing Loan Lenders. In addition, there shall be no waiver or consent unless in writing and signed by the Agent, in addition to the Lenders required hereinabove to take such action. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the Guarantors, if any, shall entitle the Borrower or the Guarantors, if any, to other or further notice or demand in similar or other circumstances. Notwithstanding anything herein the foregoing, the Agent may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the contrary, (A) other Loan Documents or to enter into additional Loan Documents as the Agent and Borrower reasonably deem appropriate in order to implement any additional Commitments Benchmark Replacement or otherwise effectuate the terms of §4.6(b)-(e) in accordance with the terms of §2.1.54.6(b)-(e). Notwithstanding the foregoing, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents may be amended or supplemented with the Obligations consent of the Agent and the accrued interest and fees in respect thereof and Borrower without the need to include appropriately obtain the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party Lender if such amendment or supplement is delivered solely in order to any Loan Documents if the same is not objected to cure ambiguities, inconsistencies, omissions, mistakes or defects in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and or any of the other Loan Documents at Documents. The Agent shall promptly provide a copy of any such amendment to the time such amendment, amendment and restatement or other modification becomes effectiveLenders.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken Except as otherwise expressly provided in this Agreement (including the giving of notice) may be takenincluding, without limitation, §2.13), any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicableeach Lender adversely affected thereby: (a) a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest); provided, further, that, (xb) any increase or reduction in the Domestic Swing Line amount of the Commitment of a Domestic Swing Line Lender reflected (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on Schedule 1 the Loan or any fees payable under the Loan Documents; (f) an extension of the Maturity Date; (g) a change in the manner of distribution of any payments to Lenders or Agent; (h) the release of any Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all Lenders; (j) [reserved]; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all Lenders or the Required Lenders, or to require a lesser number of Lenders to approve such action. Notwithstanding the foregoing, (A) the provisions of §14 may not be amended from time to time by Ryder, without the Administrative written consent of Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following shall, unless in writing and signed by (a) each Bank: (i) Agent in addition to the Lenders required above to take such action, amend, waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank consent to any additional obligationsdeparture from, including the extension definitions of such Bank’s CommitmentICE LIBOR, LIBOR Screen Rate, Successor Rate Conforming Changes or the provisions of §4.6(b) (except in accordance with §4.6(b); (ii) reduce the principal ). No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or interest delay or omission on the Loans part of Agent or any Letter of Credit, L/C Obligations Lender in exercising any right shall operate as a waiver thereof or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank affectedAffected Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank affectedAffected Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks affectedAffected Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein In the event that any Lender (a “Non-Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F)Required Lenders, (G) if following the Closing Date, the Agents and then the Borrowers shall have jointly identified the right, upon written demand to such Non-Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non-Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, 80 NYDOCS03/1107437.11107437.2 its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an inconsistencyexisting Lender or a new Lender, obvious error or omission, in each case, provided that (i) as of a technical or immaterial nature, in any provision such Consent Request Date and as of the Loan Documentsdate of the Borrowers’ written demand to replace such Non-Consenting Lender, then no Default or Event of Default shall have occurred and be continuing other than a Default or Event of Default that resulted solely from the Agents subject matter of the waiver or amendment for which such consent was being solicited from the Lenders by Agent and (ii) the Borrowers replacement of any Non-Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non-Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
Samples: Term Loan Agreement (Independence Realty Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of noticea) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the Commitment Percentage manner of distribution of any Bankpayments to the Lenders or the Agent; (h) the release of the Borrower, any Collateral or all or substantially all of the Guarantors except pursuant as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. The Agreement Regarding Fees may be amended, modified or postpone waived only with the consent of Arranger and Agent. There shall be no amendment, modification or waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any payment amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and KCM in connection with the Obligations syndication of the Loan, provided that no such amendment or modification materially affects or increases any of the obligations of the Borrower hereunder. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances.
(b) Further notwithstanding anything to the contrary in this §27, if the Agent and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities Borrower have jointly identified an ambiguity, omission, mistake or defect in any determination provision of this Agreement or the Majority Banks, and (2) to change, modify other Loan Documents or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend such provision and or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
Samples: Credit Agreement (New Senior Investment Group Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority BanksLenders; provided, however, that no such consent the Agreement Regarding Fees may be amended or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bankotherwise modified, or any Swing Line Lenderrights or privileges thereunder waived, shall be effective in a writing executed by the parties thereto only. Notwithstanding the foregoing, none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderGuarantor except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders, Required Lenders or Required Revolving Credit Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Majority Lenders, the Required Lenders or (v) extend the Required Revolving Credit Lenders to require a lesser number of Lenders to approve such action. The provisions of §7.20 may not be amended or postpone waived without the written consent of the Required Lenders. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any payment amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) Lender. No waiver shall extend to or affect any waiver, amendment obligation not expressly waived or modification requiring impair any right consequent thereon. No course of dealing or delay or omission on the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) part of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks Agent or any Lender in exercising any right shall determine whether operate as a waiver thereof or not otherwise be prejudicial thereto. No notice to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate demand upon any of the amendments (Borrower or amendments and restatements) enumerated the Guarantors shall entitle the Borrower or the Guarantor to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Senior Unsecured Credit Agreement (American Realty Capital Healthcare Trust Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including waiver of interest at the extension of such Bank’s CommitmentDefault Rate); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Guarantor except as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower or participation in a Letter of Credit, L/C Obligations Credit other than based on its Commitment Percentage; (k) an amendment to this §27; (l) a waiver of any Default or any Bankers’ Acceptance (including, without limitation, interest on overdue amountsEvent of Default under §12.1(a) or any fees payable hereunder§12.1(b); or (iiim) change the Commitment Percentage an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent Lender. The provisions of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement 14 may not be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with without the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits of this Agreement and the other Loan Documents with respect to Letters of Credit or Issuing Lender without the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination consent of the Majority BanksIssuing Lender. There shall be no amendment, and (2) to change, modify modification or alter the provisions waiver of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then Documents with respect to Swing Loans or Swing Loan Lender without the Agents written consent of Swing Loan Lender. The Borrower and the Borrowers shall be permitted Guarantors each agree to amend enter into such provision and such amendment shall become effective without any further action modifications or consent amendments of any other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and or the other Loan Documents at as reasonably may be requested by KeyBank in connection with the time syndication of the Loan, provided that no such amendment, amendment and restatement or modification materially affects or increases any of the obligations of the Borrower or the Guarantors hereunder. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the Guarantors shall entitle the Borrower or the Guarantors to other or further notice or demand in similar or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Mid America Apartment Communities Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Any amendment, however, that no such waiver or consent relating to §2.2(b) or amendment which affects the rights, duties or liabilities obligations of any Agent, the Issuing Bank, Swingline Lender under this Agreement or any Swing Line other Loan Document shall, in addition to the Lenders required hereinabove to take such action, require the written consent of the Swingline Lender. Further, shall be effective notwithstanding the foregoing, none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) each Lender: a change in the Domestic Swing Line Commitment rate of a Domestic Swing Line Lender reflected interest on Schedule 1 may be amended from time to time by Ryder, and the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any term of the following unless Notes; a change in writing and signed by the amount of the Commitments of the Lenders (a) each Bank: (i) waive any condition set forth except as provided in §112.2); (ii) change the definition of “Majority Banks”; (iii) amend this §17; a forgiveness, reduction or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect waiver of the Guaranteed Obligationsprincipal of any unpaid loan or any interest thereon or fee payable under the Loan Documents; or (b) each of a change in the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment any fee payable to a Lender hereunder; the postponement of any date fixed for any payment (or subject including any Bank to date of any additional obligations, including the extension required prepayment) of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans Loan; an extension of the Maturity Date; a change in the manner of distribution of any payments to the Lenders or the Agent; the release of Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided herein; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment an amendment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect definition of principal or interest (includingMajority Lenders, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) 9.3, or of the Bankruptcy Code of the United States supersedes the unanimous any requirement for consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on by all of the Banks, (F) Lenders; any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by Borrower other than based on its Commitment Percentage; an amendment to this §27; or an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Majority Lenders or the Majority Lenders to require a lesser number of Lenders to approve such action. The amount of the Agent’s fee payable for the Agent’s account and the provisions of §14 may not be amended (or amended and restated) with without the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing Agent. The Borrower agrees to enter into such additional credit facilities (1) to add one modifications or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by the Agent in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding assignment of Commitments provided that no such credit facilities in any determination of the Majority Banks, and (2) to change, modify amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (obligations of Borrower hereunder. No waiver shall extend to or amendments and restatements) enumerated in this clause (F), (G) if following affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision part of the Loan Documents, then Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon Borrower shall entitle Borrower to other or further notice or demand in similar or other circumstances. In the Agents and the Borrowers shall be permitted event any Lender fails to amend such provision and such amendment shall become effective without expressly grant or deny any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendmentconsent, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank waiver sought under this Agreement and within ten (10) Business Days of a written request therefor submitted by the other Loan Documents at Agent, such Lender shall be deemed to have granted to the time Agent an irrevocable proxy with respect to such amendment, amendment and restatement or other modification becomes effectivespecific matter.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (California Coastal Communities Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent modification or amendment which affects waiver of the rights, duties or liabilities definition of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective Pool Availability may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lenderthe Required Lenders. Notwithstanding the foregoing, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any none of the following unless in writing and signed by may occur without the written consent of: (a) in the case of a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest), the consent of each Bank: (i) waive any condition set forth in §11Lender holding a Note affected by such interest rate reduction; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each in the case of an increase in the amount of the Banks directly affected thereby: Commitment of the Lenders (iexcept as provided in §2.11 and §18.1), the consent of such Lender whose Commitment is increased; (c) in the case of any increase in the Total Commitment (other than in connection with an increase under §2.11), the consent of each Lender; (d) in the case of a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents, the consent of each Lender that would have otherwise received such principal, interest or fee; (e) in the case of a change in the amount of any fee payable to a Lender hereunder, the consent of each Lender to which such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment)fee would otherwise be owed; (iif) reduce in the case of the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter Loan, the consent of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of each Lender that would otherwise have received such principal or interest at such earlier fixed date; (includingg) in the case of an extension of the Maturity Date, without limitationthe consent of each Lender whose Commitment is thereby extended; (h) in the case of a change in the manner of distribution of any payments to the Lenders or the Agent, interest on overdue amountsthe consent of each Lender directly affected thereby; (i) on in the Notes case of the release of the Borrower or any L/C ObligationGuarantor except as otherwise provided in this Agreement, the consent of each Lender; (j) in the case of an amendment of the definition of Required Lenders, the consent of each Lender, and in the case of an amendment of any requirement for consent by all of the Lenders, the consent of each Lender; (k) in the case of any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage, the consent of each such Lender thereby required to fund a pro rata share other than based on its Commitment Percentage; (l) in the case of an amendment to this §27, each Lender directly affected directly thereby; or (m) in the case of an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of Lenders to approve such action, the consent of each Lender. The provisions of §14 may not be amended without the written consent of the Agent. Any fee letter may be amended, or any fee hereunderrights or privileges thereunder waived, in a writing executed by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or or, except as provided in §2.11, extended without the consent of such Bank Lender, and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank more Lender disproportionately adversely than relative to other affected Banks Lenders shall require the consent of such Defaulting BankLender). The Borrower agrees to enter into such modifications or amendments of this Agreement or the other Loan Documents as reasonably may be requested by KeyBank, the Joint Arrangers, and the Bookrunner in connection with the syndication of the Loan, provided that no such amendment or modification materially affects or increases any of the obligations of the Borrower hereunder. Notwithstanding anything herein to the contrarycontrary in this Agreement, (A) in order to implement any additional Commitments in accordance with including this §2.1.527, this Agreement may be amended by Borrower and Agent to provide for such purpose (but solely any Commitment Increase in the manner contemplated by §2.11. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances. Further notwithstanding anything to the extent necessary to implement such additional Commitments contrary in accordance with this §2.1.5) by each Borrower27, if the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake, typographical error or other defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend amend, modify or supplement such provision and or provisions to cure such amendment ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment, modification or supplement shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
Samples: Term Loan Agreement (Carter Validus Mission Critical REIT II, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Loan Parties of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority BanksRequired Lenders; provided, however, that no such consent the Fee Letter may be amended or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bankotherwise modified, or any Swing Line Lenderrights or privileges thereunder waived, shall in a writing executed by the parties thereto only; and the definition of Change of Control may be effective amended or otherwise modified, or compliance therewith waived, in a writing executed by Administrative Agent and Majority Lenders. Notwithstanding the foregoing, none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Total Commitment (except as provided in Section 2.8 and Section 18.1); (c) a forgiveness, reduction or waiver of the principal of or interest on the Loans any unpaid Loan or any Letter interest thereon (other than a reduction or waiver of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amountsdefault interest) or fee payable under the Loan Documents; (d) a change in the amount of any fees fee payable to a Lender hereunder; (iiie) change the Commitment Percentage postponement of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on any Loan; (f) an extension of the Maturity Date (except as provided in Section 2.9); (g) a change in the manner of distribution of any payments to the Lenders or Administrative Agent; (h) the release of any Borrower, any Guarantor or any Collateral except as otherwise provided in this Agreement; (i) an amendment of the definition of Majority Lenders or Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of any Loan made by Borrowers other than based on its Commitment Percentage; (k) an amendment to this Section 27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Required Lenders or the Majority Lenders to require a lesser number of Lenders to approve such action; provided, however, that this Agreement and the other Loan Documents may be amended (or amended and restated), modified or supplemented with the written consent of Administrative Agent and Borrowers to (x) cure any ambiguity, omission, defect or inconsistency, so long as such amendment, modification or supplement does not adversely affect the rights of any Lender and (y) reflect one or more Commitment Increases and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of principal this Agreement and the other Loan Documents with the Revolving Loans, as applicable, and the accrued interest and fees in respect thereof; provided, that the conditions set forth in Section 2.8 are satisfied. The provisions of Section 14 may not be amended without the written consent of Administrative Agent. There shall be no amendment, modification or interest (including, waiver of any provision in the Loan Documents with respect to Swing Loans without limitation, interest on overdue amounts) on the Notes consent of the Swing Loan Lender nor any change in the rights or duties of Administrative Agent under this Agreement or any L/C Obligation, or any fee hereunderother Loan Document without the written consent of Administrative Agent. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the no Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment Lender. Each Borrower agrees to enter into such modifications or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and Co-Lead Arrangers in connection with the Obligations syndication of the Loans and the accrued interest and fees in respect thereof and to include appropriately the Banks holding Total Commitment, provided that no such credit facilities in any determination of the Majority Banks, and (2) to change, modify amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (obligations of Borrowers hereunder. No waiver shall extend to or amendments and restatements) enumerated affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the part of Administrative Agent or any Lender in this clause (F), (G) if following the Closing Date, the Agents and the exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon Borrowers shall have jointly identified an inconsistency, obvious error entitle Borrowers to other or omission, further notice or demand in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Griffin-American Healthcare REIT III, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to may be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person and Guarantor of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; provided. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth a decrease in the rate of interest on the Notes; a change in the Maturity Date of the Notes except as provided in §112.9; (ii) change an increase in the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect amount of the Guaranteed Obligations; or (b) each Commitments of the Banks directly affected thereby: (i) increase except pursuant to §18.1; a forgiveness, reduction or waiver of the principal amount of such Bank’s Commitment (any unpaid Loan or subject any Bank to interest thereon; the postponement of any additional obligations, including the extension date fixed for any payment of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or Loans; a decrease of the amount of any Letter of Credit, L/C Obligations or any Bankers’ Acceptance fee (including, without limitation, interest on overdue amountsother than late fees) or any fees payable to a Bank hereunder; (iii) the release of the Borrowers or Guarantor except as otherwise provided herein; the release of all or a material part of the Collateral, except as otherwise provided herein; a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Banks or the Agent; an amendment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect definition of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Majority Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the requirement for consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) ; or an amendment of this Agreement §27. The provisions of §14 may not be amended (or amended and restated) with without the written consent of the Majority Banks, 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 Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination part of the Majority Banks, and (2) Agent or any Bank in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and demand upon the Borrowers or Guarantor shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and entitle the Borrowers shall be permitted or Guarantor to amend such provision and such amendment shall become effective without any other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Loan Agreement (Meruelo Richard)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of noticea) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to may be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Requisite Banks; provided, however, that no such the consent of the Requisite Banks shall be required to modify or amendment which affects amend or waive the rights, duties performance or liabilities observance by the Borrower of any Agentof the provisions of ss.ss.8.1, 8.3, 8.4 or Article 9. Notwithstanding the Issuing Bankforegoing, or any Swing Line Lender, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth a decrease in §11the rate of interest on the Notes; (ii) a change in the definition term of “Majority Banks”the Notes; (iii) amend this §17an increase in the amount of the Commitments of the Banks except pursuant to ss.18.1; or (iv) release any Borrower from its Obligations a change in the manner of determining the Borrowing Base; (v) a change in the definition of Qualifying Mortgage Loans or release Ryderthe manner of determining same; (vi) a forgiveness, in its capacity as guarantor, from its obligations under §5 hereof reduction or in respect waiver of the Guaranteed Obligations; principal of any unpaid Loan or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment)interest thereon; (iivii) reduce the postponement of any date fixed for any payment of principal of or interest on the Loans or Loans; (viii) a decrease of the amount of any Letter of Credit, L/C Obligations or any Bankers’ Acceptance fee (including, without limitation, interest on overdue amountsother than late fees) or any fees payable to a Bank hereunder; (iiiix) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes Borrower or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary Collateral except as otherwise provided herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that ; (x) a change in the Commitment manner of distribution of any Defaulting Bank may not be increased or extended without payments to the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, Agent; (Axi) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) an amendment of the Bankruptcy Code definition of the United States supersedes the unanimous Requisite Banks or Requisite Banks or of any requirement for consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on by all of the Banks, ; (Fxii) this Agreement may be amended a Change in Control; (or amended and restatedxiii) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.an
Appears in 1 contract
Samples: Revolving Credit Agreement (American Church Mortgage Co)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent modification or amendment which affects waiver of the rights, duties or liabilities definition of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective Borrowing Base Availability may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) Required Lenders. Notwithstanding the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In additionforegoing, no amendment, modification or waiver or consent shall do of any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in §11; (ii) change 8.7, §9.1, §9.2, §9.3, §9.4, §9.5, §9.6, §9.7, §9.8 or §9.9 may occur without the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect written consent of the Guaranteed Obligations; or (b) each Required Lenders. Notwithstanding the foregoing, none of the Banks following may occur without the written consent of each Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Revolving Credit Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders or Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingLenders, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationRequired Lenders, or the Majority Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any fee hereunderprovision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Revolving Credit Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment Lender. The Borrower agrees to enter into such modifications or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arranger in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12) or the Term Loan Maturity Date; (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of any Borrower or any Letter of CreditCollateral except as otherwise provided in §5.4, L/C Obligations §5.6 or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder§5.7; (iiii) change an amendment of the Commitment Percentage definition of Majority Revolving Credit Lenders, Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Majority Revolving Credit Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. The Borrowers agree to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (obligations of the Borrowers hereunder. No waiver shall extend to or amendments and restatements) enumerated affect any 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 Lender in this clause (F), (G) if following the Closing Date, the Agents and exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and entitle the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of Borrower or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderGuarantor except as otherwise provided in this Agreement; (iiii) change an amendment of the definition of Required Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage Percentage; (k) an amendment to this §27; or (l) an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits of this Agreement and the other Loan Documents with respect to Swing Loans without the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination consent of the Majority BanksSwing Loan Lender, and (2) nor any amendment, modification or waiver of any provision in the Loan Documents with respect to change, modify Letters of Credit without the consent of the Issuing Lender. No waiver shall extend to or alter affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the provisions part of this Agreement relating the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to the pro rata sharing of payments among the Banks to the extent necessary to effectuate or demand upon any of the amendments (Borrower or amendments and restatements) enumerated Guarantors shall entitle the Borrower or Guarantors to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction, or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of any Borrower except as otherwise provided in §5.2 or §5.4; (i) an amendment of the definition of Majority Lenders, Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; (l) an amendment or modification to the definition of Unencumbered Asset Pool Availability (or any Letter defined term referenced therein) which would result in an increase in availability derived from Leased Assets; or (m) an amendment of Creditany provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, L/C Obligations the Majority Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Lender in exercising any right shall operate as a waiver thereof or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders or Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Required Lenders, the Majority Lenders or the Majority Revolving Credit Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. There shall be no amendment to the pro rata treatment definition of Majority Revolving Credit Lenders without the consent of all of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderRevolving Credit Lenders. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment Lender. The Borrower agrees to enter into such modifications or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank, the Arranger and the Syndication Agent in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrower or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Loans or Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitment of any of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount or date fixed for any payment of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoans; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone Borrower, any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; (l) any amendment, consent, or waiver that would result in a Change of Control of the Borrower or the Guarantor; (m) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of Lenders to approve such action, or (n) waive any Event of Default resulting from, or otherwise modifying the definition of, a Change of Control. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrarycontrary in this Agreement, (A) in order to implement any additional Commitments in accordance with including this §2.1.527, this Agreement may be amended by the Borrower and Agent to provide for such purpose (but solely any Commitment Increase in the manner contemplated by §2.11. Notwithstanding anything to the extent necessary to implement such additional Commitments contrary in accordance with this §2.1.5) by each Borrower27, if the applicable Agent, Agent and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistencyambiguity, obvious error or omission, in each case, of a technical mistake or immaterial nature, defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend such provision or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not materially adversely affect the interests of the Lenders and the Issuing Lender. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedAgent and the Required Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time directly affected by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless following: a reduction in writing and signed by the rate of interest on the Notes; an increase in the amount of the Commitments of the Lenders (a) each Bank: (i) waive any condition set forth except as provided in §11; (ii) change the definition of “Majority Banks”; (iii) amend this 18.1 and §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment2.2); (ii) reduce a forgiveness, reduction or waiver of the principal of or interest on the Loans any unpaid Loan or any Letter interest thereon or fee payable under the Loan Documents; a change in the amount of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees fee payable to a Lender hereunder; (iii) change the Commitment Percentage postponement of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of and fees or any principal of or interest (including, without limitation, interest on overdue amounts) on any Loan; an extension of the Notes or Maturity Date; a change in the manner of distribution of any L/C Obligation, or any fee hereunder. Notwithstanding anything payments to the contrary herein, no Defaulting Bank shall have Lenders or the Agent; any right modification to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent require a Lender to fund a pro rata share of all Banks or each affected Bank may be effected with the consent a request for an advance of the applicable Banks Loan made by the Borrower other than Defaulting Banks), except that (x) the based on its Commitment Percentage; a waiver of any Defaulting Bank indemnity of a Lender. The provisions of §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. Further notwithstanding the foregoing, none of the Agents, each following may occur without the written consent of 100% of the Lenders: the release of the Borrower, and ; an amendment of the relevant Banks providing such additional credit facilities (1) to add one definition of Required Lenders or more additional credit facilities of any requirement for consent by all of the Lenders; an amendment to this Agreement, to permit the extensions §29; or an amendment of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits any provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination approval of all of the Majority Banks, and (2) Lenders or the Required Lenders to change, modify require a lesser number of Lenders to approve such action No waiver shall extend to or alter affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the provisions part of this Agreement relating the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to the pro rata sharing of payments among the Banks to the extent necessary to effectuate or demand upon any of the amendments (Borrower shall entitle the Borrower to other or amendments and restatements) enumerated further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Master Credit Agreement (Entertainment Properties Trust)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person Guarantor of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date; (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of Borrower, Guarantor or all or substantially all of the Collateral (except as provided in §5.3); (i) an amendment of the definition of Required Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 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 part of Agent or any Letter Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of Credit, L/C Obligations Borrower or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Guarantor shall entitle Borrower or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant Guarantor to §2.4 other or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby further notice or (v) extend demand in similar or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderother circumstances. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank more Lender disproportionately adversely than relative to other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (FLender), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person the Subsidiary Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Revolving Credit Maturity Date (except as provided in §2.13); (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Majority Lenders, Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Majority Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that there shall be no such consent modification or amendment which affects the rights, duties or liabilities waiver of any Agentof the covenants set forth in (S)8.7, the Issuing Bank, (S)8.9 or any Swing Line Lender, shall be effective in (S)9 without the written consent of such Personthe Required Lenders. Notwithstanding the foregoing, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any none of the following unless may occur without the written consent of each Lender: a reduction in writing and signed by (a) each Bank: (i) waive any condition set forth the rate of interest on the Notes; an increase in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect amount of the Guaranteed Obligations; or (b) each Commitments of the Banks directly affected thereby: Lenders (i) increase except as provided in (S)18.1); a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; a change in the amount of such Bank’s Commitment (or subject any Bank fee payable to a Lender hereunder; the postponement of any additional obligations, including the extension date fixed for any payment of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans Loan; an extension of the Maturity Date; a change in the manner of distribution of any payments to the Lenders or the Agent; the release of the Borrower or any Letter of Credit, L/C Obligations Guarantor or any Bankers’ Acceptance Collateral except as otherwise provided in (includingS)5.4, without limitation(S)5.6, interest (S)5.7 or (S)14.11; an amendment of the definition of Majority Lenders or Required Lenders or of any requirement for consent by all of the Lenders; any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on overdue amounts) its Commitment Percentage; an amendment to this (S)27; an increase in the advance rate within the Borrowing Base; a modification or waiver of (S)9.6 or (S)9.8; an amendment of any of the definitions used within (S)9.6 or (S)9.8, or of the definition of Borrowing Base or any fees payable hereunderdefinitions used within such definition; (iii) change the Commitment Percentage a waiver of any Bank, except pursuant to §2.4 indemnity of a Lender; or §21, (iv) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder such action. The provisions of (and any amendment, waiver or consent which by its terms requires the consent of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank S)14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits of this Agreement and the other Loan Documents with respect to Swing Loans without the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination consent of the Majority BanksSwing Loan Lender, and (2) nor any amendment, modification or waiver of any provision in the Loan Documents with respect to change, modify Letters of Credit without the consent of the Issuing Lender. No waiver shall extend to or alter affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or delay or omission on the provisions part of this Agreement relating the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to the pro rata sharing of payments among the Banks to the extent necessary to effectuate or demand upon any of the amendments (Borrower or amendments and restatements) enumerated the Guarantors shall entitle the Borrower or any Guarantor to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.112.10 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12) or the Term Loan Maturity Date (except as provided in §2.132.11); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Revolving Credit Lenders, Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Majority Revolving Credit Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. The Borrower agrees to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority BanksRequired Lenders; provided, however, that no such consent the Agreement Regarding Fees may be amended or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bankotherwise modified, or any Swing Line Lenderrights or privileges thereunder waived, shall be effective in a writing executed by the parties thereto only. Notwithstanding the foregoing, none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or (v) extend waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or postpone waiver of any date fixed for any payment provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment Lender. The Borrower agrees to enter into such modifications or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arranger in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment Super-Majority Lenders: a modification or waiver of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in §11; 8.7, §9.1, §9.2, §9.3 and §9.4 or with respect to the Borrowing Base (ii) change including any definitions relating to such provisions). Notwithstanding the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryderforegoing, in its capacity as guarantor, from its obligations under §5 hereof or in respect none of the Guaranteed Obligationsfollowing may occur without the written consent of each Lender directly
(a) a decrease in the rate of interest on any Loan (but excluding interest at the default rate); or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders; (ic) increase a reduction or waiver of the principal of any unpaid Loan or any interest thereon; a change in the amount of such Bank’s Commitment any fee payable to a Lender hereunder; (d) any extension, postponement or subject waiver of the date on which any Bank fees are payable to any additional obligations, including the a Lender hereunder; except as provided in §4.15 an extension of such Bank’s Commitment)the Maturity Date; (iie) reduce the release of the Borrowers or the Guarantor which has executed any of the Loan Documents or any of the Collateral except as otherwise provided herein; (f) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loans made by the Borrowers other than based on its Commitment Percentage; a change to this §27; (g) any postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (h) any change in the manner of distribution of any payments to the Lenders or any Letter of Credit, L/C Obligations Agent; or any Bankers’ Acceptance (including, without limitation, interest on overdue amountsi) or any fees payable hereunder; (iii) change an amendment of the Commitment Percentage definition of Majority Lenders or Super-Majority Lenders or of any Bank, except pursuant to requirement for consent by all of the Lenders. The amount of the Agent’s fee payable for the Agent’s account and the provisions of §2.4 or 14 may not be amended without the written consent of the Agent. The provisions of §21, (iv) alter 14 may not be amended nor any provision relating change made in the amount of any fee payable to the pro rata treatment Agent without the written consent of the Banks Agent. The Borrowers agree to enter into such modifications or amendments of this Agreement or the other Loan Documents as required hereby reasonably may be requested by KeyBank in connection with the assignment of Commitments provided that no such amendment or (v) extend modification materially affects or postpone increases any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee obligations of the Borrowers hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank Lenders that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein 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 contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) part of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks Agent or any Lender in exercising any right shall determine whether operate as a waiver thereof or not otherwise be prejudicial thereto. No notice to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and demand upon the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and entitle the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Loans or Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitment of any of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount or date fixed for any payment of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoans; (iiif) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; (l) any amendment, consent, or waiver that would result in a Change of Control of the Borrowers or the Guarantors; (m) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of Lenders to approve such action, (n) any modification, amendment or waiver of any provision of the Agreement with respect to each Lender’s rights regarding flood insurance diligence and flood insurance compliance, or (o) waive any Event of Default resulting from, or otherwise modifying the definition of, a Change of Control. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrarycontrary in this Agreement, (A) in order to implement any additional Commitments in accordance with including this §2.1.527, this Agreement may be amended by the Borrowers and Agent to provide for such purpose (but solely any Commitment Increase in the manner contemplated by §2.11 and the extension of the Revolving Credit Maturity Date as provided in §2.12. Notwithstanding anything to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated contrary in this clause (F)§27, (G) if following the Closing Date, the Agents Agent and the Borrowers shall have jointly identified an inconsistencyambiguity, obvious error or omission, in each case, of a technical mistake or immaterial nature, defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the Loan Documents, then the Agents Agent and the Borrowers shall be permitted to amend such provision or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not materially adversely affect the interests of the Lenders and the Issuing Lender. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.Agreement
Appears in 1 contract
Samples: Credit Agreement (Bluerock Residential Growth REIT, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority BanksRequired Lenders; providedprovided that any amendment or waiver of §3.2, however§7.20 or §9 shall require the written consent of the Super-Required Lenders. Notwithstanding the foregoing, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bankpayments to the Lenders or the Agent; (h) the release of the Borrower, any Collateral or all or substantially all of the Guarantors except pursuant as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 or §21, 27; (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or the Required Lenders to require a lesser number of Lenders to approve such action, or (vm) extend an amendment of the definition of Change of Control or postpone waiver of any date fixed for Change of Control. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any payment provision in the Loan Documents with respect to Swing Loans without the consent of principal the Swing Loan Lender, nor any amendment, modification or interest (including, waiver of any provision in the Loan Documents with respect to Letters of Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and KCM in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: (i) waive any condition set forth a reduction in §11the rate of interest on the Notes; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.10 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.11); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Letter of Credit, L/C Obligations Guarantor or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. The Borrower agrees to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon any of the Borrower or the Guarantors shall become effective without entitle the Borrower or any Guarantor to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Gladstone Commercial Corp)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent modification or amendment which affects waiver of the rights, duties or liabilities definition of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective Pool Availability may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) Required Lenders. Notwithstanding the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In additionforegoing, no amendment, modification or waiver or consent shall do of any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in §11; (ii) change 8.7 or §9.1-§9.12 may occur without the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect written consent of the Guaranteed Obligations; or (b) each Required Lenders. Notwithstanding the foregoing, none of the Banks following may occur without the written consent of each Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date or Term Loan Maturity Date, as applicable (except, in each case, as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the removal of any Pool Properties from the calculation of Pool Availability except as provided in this Agreement, or the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders, Majority Revolving Credit Lenders or Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders, the Majority Lenders or (v) extend the Majority Revolving Credit Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or postpone waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any payment amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender, and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Joint Arrangers and Bookrunners in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT II, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken Except as otherwise expressly provided in this Agreement (including the giving of notice) may be takenincluding, without limitation, §2.13), any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicableeach Lender adversely affected thereby: (a) a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest); provided, further, that, (xb) any increase or reduction in the Domestic Swing Line amount of the Commitment of a Domestic Swing Line Lender reflected (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on Schedule 1 the Loan or any fees payable under the Loan Documents; (f) an extension of the Maturity Date; (g) a change in the manner of distribution of any payments to Lenders or Agent; (h) the release of any Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all Lenders; (j) [reserved]; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all Lenders or the Required Lenders, or to require a lesser number of Lenders to approve such action. Notwithstanding the foregoing, (A) the provisions of §14 may not be amended from time to time by Ryder, without the Administrative written consent of Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following shall, unless in writing and signed by (a) each Bank: (i) Agent in addition to the Lenders required above to take such action, amend, waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank consent to any additional obligationsdeparture 80 from, including the extension definitions of such Bank’s CommitmentICE LIBOR, LIBOR Screen Rate, Successor Rate Conforming Changes or the provisions of §4.6(b); (ii) reduce the principal . No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of dealing or interest delay or omission on the Loans part of Agent or any Letter of Credit, L/C Obligations Lender in exercising any right shall operate as a waiver thereof or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein In the event that any Lender (a “Non‑Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F)Required Lenders, (G) if following the Closing Date, the Agents and then the Borrowers shall have jointly identified the right, upon written demand to such Non‑Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non‑Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an inconsistencyexisting Lender or a new Lender, obvious error or omission, in each case, provided that (i) as of a technical or immaterial nature, in any provision such Consent Request Date and as of the Loan Documentsdate of the Borrowers’ written demand to replace such Non‑Consenting Lender, then no Default or Event of Default shall have occurred and be continuing other than a Default or Event of Default that resulted solely from the Agents subject matter of the waiver or amendment for which such consent was being solicited from the Lenders by Agent and (ii) the Borrowers replacement of any Non‑Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non‑Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
Samples: Term Loan Agreement (Independence Realty Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority BanksLenders; provided, however, that no such consent the Agreement Regarding Fees may be amended or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bankotherwise modified, or any Swing Line Lenderrights or privileges thereunder waived, shall be effective in a writing executed by the parties thereto only. Notwithstanding the foregoing, none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereundermaterial Collateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders, Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Majority Lenders or (v) extend the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §7.20 may not be amended or postpone waived without the written consent of the Required Lenders. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any payment amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) Lender). No waiver shall extend to or affect any waiver, amendment obligation not expressly waived or modification requiring impair any right consequent thereon. No course of dealing or delay or omission on the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) part of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks Agent or any Lender in exercising any right shall determine whether operate as a waiver thereof or not otherwise be prejudicial thereto. No notice to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate demand upon any of the amendments (Borrower or amendments and restatements) enumerated the Guarantors shall entitle the Borrower or any Guarantor to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust II, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Loans or Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitment of any of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount or date fixed for any payment of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoans; (iiif) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; (l) any amendment, consent, or waiver that would result in a Change of Control of the Borrowers or the Guarantor; (m) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of Lenders to approve such action, (n) any modification, amendment or waiver of any provision of the Agreement with respect to each Lender’s rights regarding flood insurance diligence and flood insurance compliance, or (o) waive any Event of Default resulting from, or otherwise modifying the definition of, a Change of Control. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Defaulting Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrarycontrary in this Agreement, (A) in order to implement any additional Commitments in accordance with including this §2.1.527, this Agreement may be amended by the Borrowers and Agent to provide for such purpose (but solely any Commitment Increase in the manner contemplated by §2.11 and the extension of the Revolving Credit Maturity Date as provided in §2.12. Notwithstanding anything to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated contrary in this clause (F)§27, (G) if following the Closing Date, the Agents Agent and the Borrowers shall have jointly identified an inconsistencyambiguity, obvious error or omission, in each case, of a technical mistake or immaterial nature, defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the Loan Documents, then the Agents Agent and the Borrowers shall be permitted to amend such provision or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not materially adversely affect the interests of the Lenders and the Issuing Lender. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.Agreement
Appears in 1 contract
Samples: Credit Agreement (Bluerock Residential Growth REIT, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken Except as otherwise expressly provided in this Agreement (including the giving of notice) may be takenincluding, without limitation, §2.13), any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce any increase or reduction in the amount of the Commitment of a Lender (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Loan or any fees payable hereunderunder the Loan Documents; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bank, payments to Lenders or Agent; (h) the release of any Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except pursuant as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all Lenders; (j) [reserved]; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating of this Agreement or the Loan Documents which requires the approval of all Lenders or the Required Lenders, or to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the pro rata treatment written consent of the Banks as required hereby Agent. No waiver shall extend to or (v) extend affect any obligation not expressly waived or postpone impair any date fixed for any payment in respect right consequent thereon. No course of principal dealing or interest (including, without limitation, interest on overdue amounts) delay or omission on the Notes part of Agent or any L/C Obligation, Lender in exercising any right shall operate as a waiver thereof or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein In the event that any Lender (a “Non‑Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F)Required Lenders, (G) if following the Closing Date, the Agents and then the Borrowers shall have jointly identified the right, upon written demand to such Non‑Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non‑Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an inconsistencyexisting Lender or a new Lender, obvious error or omission, in each case, provided that (i) as of a technical or immaterial nature, in any provision such Consent Request Date and as of the Loan Documentsdate of the Borrowers’ written demand to replace such Non‑Consenting Lender, then no Default or Event of Default shall have occurred and be continuing other than a Default or Event of Default that resulted solely from the Agents subject matter of the waiver or amendment for which such consent was being solicited from the Lenders by Agent and (ii) the Borrowers replacement of any Non‑Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non‑Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
Samples: Term Loan Agreement (Independence Realty Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person Guarantor of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on any Note (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitment of any Lender (except to the extent such Lender elects to increase its Commitment as provided in §2.10, §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date; (g) a change in the manner of the ratable distribution of any payments to the Lenders or the Agent; (h) the release of Borrower, Guarantor or any Letter Collateral (except as provided in §34 hereof); (i) an amendment of Creditthe definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, L/C Obligations or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. Borrower and Guarantor agree to enter into such modifications or amendments of this Agreement or the other Loan Documents as reasonably may be requested by TD in connection with the syndication of the Loan, provided that no such amendment or modification materially increases any of the obligations, or materially decreases any of the rights, of Borrower hereunder. 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 part of Agent or any Bankers’ Acceptance Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of Borrower or Guarantor shall entitle Borrower or Guarantor to other or further notice or demand in similar or other circumstances. In the event that there two (2) or more Lenders hereunder and such Lenders are unable to reach a decision on an action requiring the consent of the Required Lenders and/or of Lenders other than the Required Lenders (a “Consent Action”), then Agent may in its sole discretion provide written notice of such inability to each Lender (a “Deadlock Notice”). If a Deadlock Notice is delivered by Agent and a decision is not reached on the relevant Consent Action within five (5) days thereafter, then Agent may elect, but is in no way obligated, to purchase the Note of each dissenting Lender (the “Responding Party”) upon written notice to such Responding Party. The purchase price for the Responding Party’s Note will be the outstanding principal balance of such Responding Party’s Note as of the date of the sale, together with any accrued and unpaid interest. In the event that Agent shall elect to purchase a Responding Party’s Note, such sale shall take place on a date and at a reasonable time and place designated by Agent, which shall be no later than fifteen (15) Business Days after Agent’s exercise of its purchase right. Upon such sale, (i) the Responding Party shall transfer and assign to Agent, free and clear of all liens, claims, security interests, subparticipations and encumbrances, all of its rights, title and interest with respect to its Note (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the all of Responding Party’s Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in with respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled all Loans owing to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, it with respect thereto and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended its rights and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank obligations under this Agreement and the other Loan Documents at Documents) provided any indemnification rights of such Responding Party hereunder shall survive such assignment; and (ii) Agent shall pay the applicable purchase price to the Responding Party by way of a wire transfer of immediately available funds to the account so designated by the Responding Party. If the Responding Party fails to convey its Note as set forth above within the time such and in the manner set forth above, then Agent shall have any and all remedies available to it at law or in equity, including specific performance. For purposes of this §27, a Responding Party shall also include any Lender that refuses to execute any amendment, amendment and restatement waiver or other modification becomes effectivethat has otherwise been agreed to among the Agent, the Borrower and the Required Lenders.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: (i) waive any condition set forth a reduction in §11the rate of interest on the Notes; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12) or Term Loan Maturity Date, as applicable; (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderGuarantor except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Required Lenders or Required Revolving Credit Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Revolving Credit Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent Lender. The provisions of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement 14 may not be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with without the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. The Borrower agrees to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon any of the Borrower or the Guarantors shall become effective without entitle the Borrower or any Guarantor to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Pledgor of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrower or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.2; (i) an amendment of the definition of the Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders to require a lesser number of the Lenders to approve such action. The provisions of §14 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken Except as otherwise expressly provided in this Agreement (including the giving of notice) may be takenincluding, without limitation, §2.13), any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce any increase or reduction in the amount of the Commitment of a Lender (except as provided in §2.4 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Loan or any fees payable hereunderunder the Loan Documents (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (iiif) an extension of the Maturity Date (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (g) a change in the Commitment Percentage manner of distribution of any Bankpayments to Lenders or Agent; (h) the release of any Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders, except pursuant Required Revolving Credit Lenders, Required Term Loan Lenders, or of any requirement for consent by all Lenders; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrowers other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §2.4 27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all Lenders, the Required Lenders, the Required Revolving Credit Lenders, or the Required Term Loan Lenders to require a lesser number of Lenders to approve such action. The provisions of §2114 may not be amended without the written consent of Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lenders, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lenders. Notwithstanding anything to the contrary herein, (ivi) alter any provision term of this Agreement or of any other Loan Document relating to the pro rata treatment rights or obligations of the Banks Revolving Credit Lenders, and not any other Lenders, may be amended, and the performance or observance by the Borrowers of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the written consent of the Required Revolving Credit Lenders or all Revolving Credit Lenders directly and adversely affected thereby, as required hereby applicable (and for the avoidance of doubt, consent of any Term Loan Lender shall not be required); and (ii) any term of this Agreement or of any other Loan Document relating to the rights or obligations of the Term Loan Lenders, and not any other Lenders, may be amended, and the performance or observance by the Borrowers of any such terms may be waived (veither generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Required Term Loan Lenders or all Term Loan Lenders directly or adversely affected thereby, as applicable (and for the avoidance of doubt, consent of any Revolving Credit Lender shall not be required). No waiver shall extend to or postpone affect any date fixed for obligation not expressly waived or impair any payment in respect right consequent thereon. No course of principal dealing or interest (including, without limitation, interest on overdue amounts) delay or omission on the Notes part of Agent or any L/C Obligation, Lender in exercising any right shall operate as a waiver thereof or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein NYDOCS03/1056463.7 In the event that any Lender (a “Non-Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F)Required Lenders, (G) if following the Closing Date, the Agents and then the Borrowers shall have jointly identified the right, upon written demand to such Non-Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non-Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an inconsistencyexisting Lender or a new Lender, obvious error or omission, in each case, provided that (i) as of a technical or immaterial nature, in any provision such Consent Request Date and as of the Loan Documentsdate of the Borrowers’ written demand to replace such Non-Consenting Lender, then no Default or Event of Default shall have occurred and be continuing other than a Default or Event of Default that resulted solely from the Agents subject matter of the waiver or amendment for which such consent was being solicited from the Lenders by Agent and (ii) the Borrowers replacement of any Non-Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non-Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of noticeExcept as set forth in this §27(a) may be takenor as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors, if any, of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal rate of interest on the Loans (other than a reduction or waiver of interest at the Default Rate, a retraction of the imposition of interest at the Default Rate or any amendment of the amount constituting interest at the Default Rate pursuant to the final sentence of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentthis §27(a)); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.10 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (d) a reduction in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.11); (g) an amendment to §2.13 or §12.5; (h) the release of the Borrower or any Guarantor, if any, except as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders or all Lenders directly affected thereby; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower or participation in a Letter of Credit, L/C Obligations Credit other than based on its Commitment Percentage; (k) an amendment to this §27(a); (l) a waiver of any Default or any Bankers’ Acceptance (including, without limitation, interest on overdue amountsEvent of Default under §12.1(a) or any fees payable hereunder§12.1(b); or (iiim) change the Commitment Percentage an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit or Issuing Lenders without the consent of the Issuing Lenders. There shall be no amendment, modification or waiver of any provision of the Loan Documents with respect to Swing Loans or Swing Loan Lenders without the consent of the Swing Loan Lenders. In addition, there shall be no waiver or consent with respect to the rights or duties of the Agent under this Agreement or any of the other Loan Documents unless in writing and signed by the Agent, in addition to the Lenders required hereinabove to take such action. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the Guarantors, if any, shall entitle the Borrower or the Guarantors, if any, to other or further notice or demand in similar or other circumstances. Notwithstanding anything herein the foregoing, the Agent may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the contrary, (A) other Loan Documents or to enter into additional Loan Documents as the Agent and Borrower reasonably deem appropriate in order to implement any additional Commitments Benchmark Replacement or otherwise effectuate the terms of §4.6(b) in accordance with the terms of §2.1.54.6(b). Notwithstanding the foregoing, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents may be amended or supplemented with the Obligations consent of the Agent and the accrued interest and fees in respect thereof and Borrower without the need to include appropriately obtain the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party Lender if such amendment or supplement is delivered solely in order to any Loan Documents if the same is not objected to cure ambiguities, inconsistencies, omissions, mistakes or defects in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and or any of the other Loan Documents at Documents. The Agent shall promptly provide a copy of any such amendment to the time such amendment, amendment and restatement or other modification becomes effectiveLenders.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein hereinLoan Document may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or suchany other instrumentLoan Document or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personthe Required Lenders, as applicable; provided, further, that, (x) a modification or waiver of the Domestic Swing Line Commitment definition of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver Unencumbered Pool Availability or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in in, §11; (ii) change 8.1 or §8.8. Notwithstanding the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryderforegoing, in its capacity as guarantor, from its obligations under §5 hereof or in respect none of the Guaranteed Obligations; or (b) following may occur without the written consent of each of the Banks Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.8 and §13.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a changereduction in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) change an extension of the Commitment Percentage Maturity Date (other than an extension of any Bank, except the Maturity Date pursuant to §2.4 2.9); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or substantially all of the Guarantors except as otherwise provided in this Agreement; (i) an amendment of the definition of Majority Lenders or Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower or a participation in a Swing Loan or Letter of Credit other than based on its Commitment Percentage; (k) an amendment to this §21, 14.9; (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders or the Majority Lenders to require a lesser number of Lenders to approve such action; or (vm) extend a release of the Collateral Account. The provisions of Article XII may not be amended without the written consent of the Agent. There shall be no amendment, modification or postpone waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender. There shall be no amendment, modification or waiver of any payment provision in the Loan Documents with respect to Letters of principal Credit or interest (including, Issuing Lender without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended increased, nor may the Maturity Date with respect to the Commitment of a Defaulting Lender be extended, in each case, without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, The Agent and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) permitted to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in amend any provision of the Loan Documents, then the Agents and the Borrowers shall be permitted to amend such provision Documents (and such amendment shall become effective without any further action or consent of any other party to any Loan Documents Document) if the same is not objected Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision. The Borrower and the Guarantors agree to in writing by the Majority Banks within five (5) Domestic Business Days following receipt enter into such modifications or amendments of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and or the other Loan Documents at as reasonably may be requested by KeyBank and the time Arrangers in connection with the syndication of the Loan, provided that no such amendment, amendment and restatement or modification materially affects or increases any of the obligations of the Borrower or the Guarantors hereunder. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower or the Guarantors shall entitle the Borrower or the Guarantors to other or further notice or demand in similar or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrower or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Revolving Credit Maturity Date (except as provided in §2.13); (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Required Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, and there shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding Further notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake, typographical error or other defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend amend, modify or supplement such provision and or provisions to cure such amendment ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment, modification or supplement shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce any increase or reduction in the amount of the Commitment of a Lender (except as provided in §2.4 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Loan or any fees payable hereunderunder the Loan Documents; (iiif) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the Commitment Percentage manner of distribution of any Bankpayments to the Lenders or the Agent; (h) the release of any Borrower, any Collateral Property, or any material portion of any other Collateral, or the release of any Guarantor or any reduction of Guarantor’s liability under the Guaranty except pursuant to as otherwise provided in §2.4 5.4, §5.6 or §215.7; (i) an amendment of the definition of Required Lenders, Required Revolving Credit Lenders, Required Term Loan Lenders, or of any requirement for consent by all of the Lenders; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrowers other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Required Lenders, the Required Revolving Credit Lenders, or the Required Term Loan Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, (ivi) alter any provision term of this Agreement or of any other Loan Document relating to the pro rata treatment rights or obligations of the Banks Revolving Credit Lenders, and not any other Lenders, may be amended, and the performance or observance by Borrowers of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the written consent of the Required Revolving Credit Lenders or all Revolving Credit Lenders directly and adversely affected thereby, as required hereby applicable (and for the avoidance of doubt, consent of any Term Loan Lender shall not be required); and (ii) any term of this Agreement or of any other Loan Document relating to the rights or obligations of the Term Loan Lenders, and not any other Lenders, may be amended, and the performance or observance by Borrowers of any such terms may be waived (veither generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Required Term Loan Lenders or all Term Loan Lenders directly or adversely affected thereby, as applicable (and for the avoidance of doubt, consent of any Revolving Credit Lender shall not be required). No waiver shall extend to or postpone affect any date fixed for obligation not expressly waived or impair any payment in respect right consequent thereon. No course of principal dealing or interest (including, without limitation, interest on overdue amounts) delay or omission on the Notes part of the Agent or any L/C Obligation, Lender in exercising any right shall operate as a waiver thereof or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) a change in the manner of distribution of any payments to the Lenders or the Agent; (g) the release of the Borrower or any Letter Guarantor except as otherwise provided in this Agreement; (h) an amendment of Credit, L/C Obligations the definition of Required Lenders or of any Bankers’ Acceptance requirement for consent by all of the Lenders; (including, without limitation, interest i) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on overdue amountsits Commitment Percentage; (j) an amendment to this §27; (k) a waiver of any Default or Event of Default under §12.1(a) or any fees payable hereunder§12.1(b); or (iiil) change the Commitment Percentage an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent Lender. The provisions of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement 14 may not be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with without the written consent of the Majority Banks, the Agents, each Borrower, Agent. The Borrower and the relevant Banks providing Guarantors each agree to enter into such additional credit facilities (1) to add one modifications or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower or the Agents and Guarantors hereunder. 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 Borrowers part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon any of the Borrower or the Guarantors shall become effective without any entitle the Borrower or the Guarantors to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Term Loan Agreement (Mid America Apartment Communities Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing Bank, Borrower or any Swing Line LenderGuarantor, shall be effective as the case may be. Notwithstanding the foregoing, none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce any increase or reduction in the amount of the Commitment of a Lender (except as provided in §2.4 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Loan or any fees payable hereunderunder the Loan Documents; (iiif) an extension of the Revolving Credit Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bankpayments to the Lenders or the Agent; (h) the release of any Loan Party or any Collateral, or the release of any Guarantor or any reduction of Guarantor’s liability under the Guaranty except pursuant to as otherwise provided in §2.4 5.4 or §21, 5.6; (ivi) alter an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. Additionally, notwithstanding the foregoing, any waiver or amendment of the financial and related covenants set forth in §9, any change in the definition of Borrowing Base Availability (vor any of the corollary definitions with respect thereto, or §8.7) shall require the approval of the Required Lenders. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. No waiver shall extend to or postpone affect any date fixed for obligation not expressly waived or impair any payment in respect right consequent thereon. No course of principal dealing or interest (including, without limitation, interest on overdue amounts) delay or omission on the Notes part of the Agent or any L/C Obligation, Lender in exercising any right shall operate as a waiver thereof or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistencyambiguity, obvious error or omission, in each case, of a technical mistake or immaterial nature, defect in any provision of this Agreement or an inconsistency between provisions of this Agreement, the Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend such provision or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not materially adversely affect the interests of the Lenders and the Issuing Lender. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if this Agreement. The Agent shall provide a copy of each such amendment to the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice Lenders promptly after execution thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.
Appears in 1 contract
Samples: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by of: (a) in the case of a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest), the consent of each Bank: (i) waive any condition set forth in §11Lender holding a Note affected by such interest rate reduction; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each in the case of an increase in the Commitment or the amount of the Banks directly affected thereby: Commitments of any Lender, the consent of such Lender whose Commitment is increased; (ic) in the case of any increase in the Total Commitment (other than in connection with an increase under §2.11), each Lender; (d) in the case of a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon, fee or prepayment premium payable under the Loan Documents, the consent of each Lender that would have otherwise received such principal, interest, fee or prepayment premium; (e) in the case of a change in the amount of any fee payable to a Lender hereunder, the consent of each Lender to which such Bank’s Commitment (fee or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment)prepayment premium would otherwise be owed; (iif) reduce in the case of the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter Loan, the consent of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of each Lender that would otherwise have received such principal or interest at such earlier fixed date; (includingg) [intentionally omitted]; (h) in the case of a change in the manner of distribution of any payments to the Lenders or the Agent, the consent of each Lender directly affected thereby; (i) in the case of the release of the Borrower or any Guarantor, except as otherwise provided in §5.5, the consent of each Lender; (j) in the case of an amendment of the definition of Required Lenders, each Lender; (k) in the case of any modification to require a Lender to fund a pro rata share of a request for any advance of the Loan to Borrower other than based on such Lender’s Commitment Percentage, the consent of each such Lender thereby required to fund a pro rata share other than based on its Commitment Percentage; (l) in the case of an amendment to this §27, each Lender directly affected thereby; or (m) in the case of an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders or the Required Lenders, to require a lesser number of Lenders to approve such action, each Lender. Any fee letter may be amended, or rights or privileges thereunder waived, in a writing executed by the parties thereto. There shall be no amendment, modification or waiver of any provision in the Loan Documents which result in a modification of the conditions to funding or in increased borrowing availability with respect to the Commitment without limitation, interest the consent of the Required Lenders. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent on overdue amounts) any matter not expressly waived. No course of dealing or delay or omission on the Notes part of the Agent or any L/C Obligation, Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any fee hereunderof Borrower or Guarantors shall entitle Borrower or Guarantors to other or further notice or demand in similar or other circumstances. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank more Lender disproportionately adversely than relative to other affected Banks Lenders shall require the consent of such Defaulting BankLender). Notwithstanding anything herein to the contrarycontrary in this Agreement, (A) in order to implement any additional Commitments in accordance with including this §2.1.527, this Agreement may be amended by Borrower and Agent to provide for such purpose (but solely any Commitment Increase in the manner contemplated by §2.11. Further notwithstanding anything to the extent necessary to implement such additional Commitments contrary in accordance with this §2.1.5) by each Borrower27, if the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake, typographical error or other defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend amend, modify or supplement such provision and or provisions to cure such amendment ambiguity, omission, mistake, typographical error or other defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment, modification or supplement shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and a copy thereof will be promptly forwarded by Agent to each of the Lenders. Any amendment of the Bond Subordination and Standstill Agreement or waiver of the terms thereof shall require the written consent of the Required Lenders. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the Guarantors shall entitle the Borrower or the Guarantors to other Loan Documents at the time such amendment, amendment and restatement or further notice or demand in similar or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of noticea) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bankof: (i) waive any condition set forth in §11the case of a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest), the consent of each Lender holding a Note affected by such interest rate reduction; (ii) change in the definition case of “Majority Banks”an increase in the Commitment or the amount of the Commitments of the Lenders (in each case, except as provided in §2.11 and §18.1), the consent of each Lender whose Commitment is increased; (iii) amend this §17in the case of a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents, the consent of each Lender that would have otherwise received such principal, interest or fee; or (iv) release in the case of a change in the amount of any Borrower from its Obligations or release Ryderfee payable to a Lender hereunder, the consent of each Lender to which such fee would otherwise be owed; (v) in its capacity as guarantor, from its obligations under §5 hereof or in respect the case of the Guaranteed Obligations; or (b) each postponement of the Banks directly affected thereby: (i) increase the principal amount any date fixed for any payment of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans Loan, the consent of each Lender that would otherwise have received such principal or interest at an earlier date; (vi) in the case of an extension of the Revolving Credit Maturity Date (except as provided in §2.12) each Lender whose Commitment is thereby extended; (vii) in the case of a change in the manner of distribution of any payments to the Lenders or the Agent or a change in§2.4 that would alter the ratable reduction of Commitments, the consent of each Lender or the Agent directly affected thereby; (viii) in the case of the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance Collateral except as otherwise provided in this Agreement (including, without limitation, interest on overdue amounts) or the release of any fees payable hereunderBorrowing Base Assets), each Lender directly affected thereby; (iiiix) change in the Commitment Percentage case of an amendment of the definition of Required Lenders or of any Bankrequirement for consent by all of the Lenders or all affected Lenders, except pursuant each Lender directly affected thereby; (x) in the case of any modification to require a Lender to fund a pro rata share of a request for an advance of a Loan made by the Borrower other than based on such Lender’s applicable Commitment Percentage, the consent of each such Lender thereby required to fund a pro rata share other than based on its applicable Commitment Percentage; (xi) in the case of an amendment to this §2.4 27, each Lender directly affected thereby; or §21, (ivxii) alter in the case of an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders, to require a lesser number of principal or interest (includingLenders to approve such action, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationeach Lender directly affected thereby. Any fee letter may be amended, or rights or privileges thereunder waived, in a writing executed by the parties thereto. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any fee hereunderprovision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances.
(b) Further notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake or defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend such provision and or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors, if any, of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal rate of interest on the Notes (other than a reduction or waiver of interest at the Default Rate, a retraction of the imposition of interest at the Default Rate or any amendment of the amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including constituting interest at the extension of such Bank’s CommitmentDefault Rate); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.10 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.11); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Guarantor, if any, except as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower or participation in a Letter of Credit, L/C Obligations Credit other than based on its Commitment Percentage; (k) an amendment to this §27; (l) a waiver of any Default or any Bankers’ Acceptance (including, without limitation, interest on overdue amountsEvent of Default under §12.1(a) or any fees payable hereunder§12.1(b); or (iiim) change the Commitment Percentage an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with The provisions of §2.1.5, this Agreement 14 may not be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with without the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits of this Agreement and the other Loan Documents with respect to Letters of Credit or Issuing Lender without the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination consent of the Majority BanksIssuing Lender. There shall be no amendment, and (2) to change, modify modification or alter the provisions waiver of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then Documents with respect to Swing Loans or Swing Loan Lender without the Agents written consent of Swing Loan Lender. The Borrower and the Borrowers shall be permitted Guarantors, if any, each agree to amend enter into such provision and such amendment shall become effective without any further action modifications or consent amendments of any other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and or the other Loan Documents at as reasonably may be requested by KeyBank in connection with the time syndication of the Loan, provided that no such amendmentamendment or modification materially affects or increases any of the obligations of the Borrower or the Guarantors, amendment and restatement if any, hereunder. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the Guarantors, if any, shall entitle the Borrower or the Guarantors, if any, to other or further notice or demand in similar or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrower or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Revolving Credit Maturity Date (except as provided in §2.13); (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Required Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding Further notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake, typographical error or other defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend amend, modify or supplement such provision and or provisions to cure such amendment ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment, modification or supplement shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks 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 of any of the other Loan Documents or mentioned therein may be amended, and the performance or observance by the Borrowers Borrower, a Subsidiary Guarantor, an Unsecured Revolver Subsidiary Guarantor or the Trust or any other Person of their respective Subsidiaries of any terms of this Agreement or the terms thereof and other Loan Documents or the continuance of 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)) with, but only with with, the written consent of the Majority BanksLenders. Notwithstanding the foregoing, Unanimousthe approval of each Lender Approvaldirectly affected thereby shall be required for any amendment, modification or waiver of this Agreement that (subject to §2.11 in the case of Permitted Amendments):
(a) (i) reduces or forgives any principal of any unpaid Loan or any interest thereon (including any general waiver of interest “breakage” costs) or any fees due anyto such Lender hereunder, or permits any prepayment not otherwise permitted hereunder; or
(b) (ii) changes the unpaid principal amount of the Term Loan, reduces the rate of interest applicable to the Term Loan, or reduces any fee payable to the LendersAgent or the Lenders hereunder; provided, however, that no such only the consent or amendment which affects of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, Majority Lenders shall be effective without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: necessary (i) waive any condition set forth in §11; (ii) change to amend the definition of “Majority Banks”Default Rate” or to waive any obligation of the Borrower to pay interest at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on the Term Loan or to reduce any fee payable hereunder; or
(c) (iii) amend this except as permitted pursuant to the terms of §17; or (iv) release 2.11, changes the date fixed for any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect payment of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on any portion of the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance Term Loan (including, without limitation, interest on overdue amountsany extension of the applicable Maturity Date not contemplated herein) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest hereunder (including, without limitation, interest on overdue amountsthe waiver of any monetary Event of Default); or
(d) on (iv) changes the Notes amount of anysuch Lender’s Commitment (other than pursuant to an assignment permitted under §20.1) or any L/C Obligation, or any fee increases the amount of the Total Commitment except as permitted hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank ; or
(e) And Unanimous Lender Approval shall have any right to approve or disapprove be required for any amendment, modification or waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees that:
(f) changes §14.4 in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or a manner that would alter the provisions of this Agreement relating to the pro rata sharing of payments among required thereby; or
(g) (v) modifies any provision herein or in any other Loan Document which by the Banks to the extent necessary to effectuate any of the amendments terms thereof expressly requires Unanimous Lender Approval; or
(or amendments and restatementsh) enumerated in this clause (F), (Gvi) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in changes any provision of this §28 or the Loan Documents, then the Agents and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action definitions of “Majority Lenders” or consent of “Unanimous Lender Approval” or any other party to any Loan Documents if provision hereof specifying the same is not objected to in writing by number or percentage of Lenders greater than the Majority Banks within five (5) Domestic Business Days following receipt of notice thereofLenders required to amend, and (H) as to waive or otherwise modify any amendment, amendment and restatement rights hereunder or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the make any determination or grant any consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.hereunder; or
Appears in 1 contract
Samples: Secured Term Loan Agreement (First Potomac Realty Trust)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter Collateral except as otherwise provided in this Agreement and except for releases of Credit, L/C Obligations portions of the Collateral that are not material to the operations of the Borrower or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderGuarantor; (iiii) change an amendment of the Commitment Percentage definition of Majority Lenders or Required Lenders or of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed requirement for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, Lenders; (Fj) this Agreement may be amended (or amended and restated) with the written consent any modification to require a Lender to fund a pro rata share of a request for an advance of the Majority Banks, Revolving Credit Loan made by the Agents, each Borrower, and the relevant Banks providing such additional credit facilities Borrower other than based on its Commitment Percentage; (1k) to add one or more additional credit facilities an amendment to this Agreement, to permit the extensions §27; (l) an amendment of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.this
Appears in 1 contract
Samples: Credit Agreement (Tier Reit Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of or interest on the Loans any unpaid Loan or any Letter interest thereon or fee payable under the Loan Documents; (d) a reduction of Credit, L/C Obligations a fee or change in the amount of any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees fee payable to a Lender hereunder; (iiie) change the Commitment Percentage postponement of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal of or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationLoan, or any fee payable to the affected Lenders (excluding any fee payable to any arranger or the Agent in its capacity as administrative agent hereunder); (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.15) or the Term Loan Maturity Date; (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or the removal of any Unencumbered Asset Pool Properties except as otherwise provided in §5.4, §5.5, §7.18(c) or §7.18(d); (i) an amendment of the definition of Majority Revolving Credit Lenders, Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Majority Revolving Credit Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders, the Required Lenders, the Majority Revolving Credit Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender, and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender). Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) Any amendment of the Bankruptcy Code Equipment Intercreditor Agreement or the Subordination and Standstill Agreements or waiver of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks terms thereof shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with require the written consent of the Majority Banks, Required Lenders. 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 Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination part of the Majority Banks, and (2) Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate demand upon any of the amendments (Borrower or amendments and restatements) enumerated the Guarantors shall entitle the Borrower or the Guarantors to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any material term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person the Subsidiary Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrowers or the other Credit Parties, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Revolving Credit Maturity Date (except as provided in §2.13); (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (includingBorrower, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationother Credit Party, or any fee hereunderCollateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of the definition of Majority Lenders, Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Majority Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Loan Party of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, Borrower or the Guarantors, as the case may be. Subject to the immediately following sentence, any term of this Agreement or of any other Loan Document relating to the rights or obligations of the Lenders of a particular Class, and not Lenders of any other Class, may be amended, and the performance or observance by Borrower or any other Loan Party or Subsidiary of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the Issuing Bankwritten consent of the Required Class Lenders for such Class of Lenders. Notwithstanding the foregoing, or any Swing Line Lender, shall be effective none of the following may occur without the written consent of such Person, as applicableeach Lender adversely affected thereby: (a) a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest); provided, further, that, (xb) any increase or reduction in the Domestic Swing Line amount of the Commitment of a Domestic Swing Line Lender reflected (except as provided in §2.4, §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on Schedule 1 the Loan or any fees payable under the Loan Documents (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (f) an extension of the Maturity Date (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (g) a change in the manner of distribution of any payments to Lenders or Agent; (h) the release of Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders or Required Class Lenders or of any requirement for consent by all Lenders or all Lenders of a certain Class; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by Borrower other than based on its Applicable Percentage; (k) an amendment to this §28; (l) an amendment to the definition of Commitment Percentage, Revolving Credit Commitment Percentage, Term Loan Commitment Percentage, 2021 Term Loan Commitment Percentage, 2022 Term Loan Commitment Percentage, or Applicable Percentage; or (m) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all Lenders, the Required Lenders, or the Required Class Lenders to require a lesser number of Lenders to approve such action. Notwithstanding the foregoing, the provisions of §14 may not be amended from time to time by Ryder, without the Administrative written consent of Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following shall, unless in writing and signed by Agent in addition to the Lenders required above to take such action, amend, waive or consent to any departure from, the definitions of Adjusted Term SOFR, Term SOFR, Adjusted Daily Simple SOFR, Daily Simple SOFR (a) each Bank: (i) waive or any condition set forth in §11; (ii) change the component definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; foregoing), Conforming Changes or the provisions of §4.17 (b) each except in accordance with §4.17). There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Banks directly affected thereby: (i) increase Swing Loan Lenders, nor any amendment, modification or waiver of any provision in the principal amount Loan Documents with respect to Letters of such Bank’s Commitment (Credit without the consent of the Issuing Lenders. No waiver shall extend to or subject affect any Bank to obligation not expressly waived or impair any additional obligations, including the extension right consequent thereon. No course of such Bank’s Commitment); (ii) reduce the principal of dealing or interest delay or omission on the Loans part of Agent or any Letter of Credit, L/C Obligations Lender in exercising any right shall operate as a waiver thereof or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Affected Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Affected Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Affected Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein In the event that any Lender (a “Non-Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing Required Lenders, then Borrower shall have the right, upon written demand to such Non-Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non-Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an existing Lender or a new Lender, provided that (i) as of payments among the Banks to the extent necessary to effectuate any such Consent Request Date and as of the amendments (date of Borrower’s written demand to replace such Non-Consenting Lender, no Default or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers Event of Default shall have jointly identified an inconsistency, obvious error occurred and be continuing other than a Default or omission, in each case, Event of a technical or immaterial nature, in any provision Default that resulted solely from the subject matter of the Loan Documents, then waiver or amendment for which such consent was being solicited from the Agents Lenders by Agent and (ii) the Borrowers replacement of any Non-Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non-Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to may be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantor of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; provided. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: a change in the rate of interest on and the term of the Notes; the amount of the Commitments of the Banks; a reduction or waiver of the principal of any unpaid Loan or any interest thereon; the amount of any fee (iother than late fees) waive any condition set forth in §11payable to a Bank hereunder; (ii) change the release of the Borrower or the Guarantor except as otherwise provided herein; or an amendment of the definition of “Majority Banks”; (iii) amend this §17; Banks or (iv) release of any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect requirement for consent by all of the Guaranteed Obligations; or (b) each Banks. The amount of the Banks directly affected thereby: (i) increase Agent's fee payable for the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right to approve or disapprove any amendment, waiver or consent hereunder (Agent's account and any amendment, waiver or consent which by its terms requires the consent of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or 14 may not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with without the written consent of the Majority Banks, the Agents, each Borrower, Agent. The Borrower and the relevant Banks providing Guarantor each agrees to enter into such additional credit facilities (1) to add one modifications or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as may be reasonably requested by BankBoston in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination acquisition by each Bank acquiring all or a portion of the Majority BanksCommitment, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then the Agents and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action Borrower or consent of any other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.the
Appears in 1 contract
Samples: Unsecured Term Loan Agreement (Ramco Gershenson Properties Trust)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Loans (other than a reduction or subject any Bank to any additional obligations, including waiver of interest at the extension of such Bank’s CommitmentDefault Rate); (iib) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (c) a change in the amount of any fee payable to a Lender hereunder; (d) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (e) an extension of the Maturity Date; (f) a change in the manner of distribution of any payments to the Lenders or the Agent; (g) the release of the Borrower or any Letter Guarantor except as otherwise provided in this Agreement; (h) an amendment of Credit, L/C Obligations the definition of Required Lenders or Credit Percentage or of any Bankers’ Acceptance requirement for consent by all of the Lenders; (including, without limitation, interest on overdue amountsi) any modification to require a Lender to fund a pro rata share of a Loan Increase except as otherwise agreed by such Lender in accordance with §2.11; (j) an amendment to this §27; (k) a waiver of any Default or Event of Default under §12.1(a) or any fees payable hereunder§12.1(b); or (iiik) change the Commitment Percentage an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment . The provisions of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. In addition, no amendment, waiver or consent unless in writing and signed by the AgentsAgent, each Borrowerin addition to the Lenders required hereinabove to take such action, shall affect the rights or duties of the Agent under this Agreement or any of the other Loan Documents. The Borrower and the relevant Banks providing Guarantors each agree to enter into such additional credit facilities (1) to add one modifications or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by Xxxxx Fargo Bank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower or the Agents and Guarantors hereunder. 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 Borrowers part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon any of the Borrower or the Guarantors shall become effective without any entitle the Borrower or the Guarantors to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement may be given, and any term of this Agreement or of any other Loan Document to be given by the Banks may be given, 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 Borrowers Borrower or any other Person Loan Party of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects Required Lenders. Notwithstanding the rights, duties or liabilities foregoing provisions of any Agent, this Section:
(a) none of the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personeach affected Lender:
(i) a decrease in the rate of interest on the Notes;
(ii) an increase in the amount of the Commitments of Lenders, except as applicable; providedprovided in §2.9;
(iii) a forgiveness, further, that, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents (xother than in connection with the imposition or rescission of the Default Rate);
(iv) a decrease in the amount of any fee payable to a Lender hereunder;
(v) an extension of the Maturity Date;
(vi) the Domestic Swing Line Commitment release of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by RyderBorrower, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver any Guarantor or consent shall do any of the following unless in writing and signed by Collateral except as otherwise provided herein;
(avii) each Bank: (i) waive any condition set forth in §11; (ii) a change the definition of “Majority Banks”; (iii) amend to this §17; or 27;
(ivviii) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect postponement of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on, or fees in respect of, the Loans;
(ix) any change in the manner of principal distribution of any payments to Lenders or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that Agent;
(x) an amendment of the Commitment definition of Required Lenders or of any Defaulting Bank may not be increased or extended without the requirement for consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, Lenders; or
(Fxi) this Agreement may be amended (or amended and restated) with the written consent an amendment of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits any provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect all of Lenders or the Required Lenders to require a lesser number of Lenders to approve such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveaction.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Forestar Real Estate Group Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of any Default Non-Advance Condition 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)) with, but only with with, the written consent of the Agent and the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicableeach Lender: a reduction in the rate of interest on the Notes; provided, further, that, (x) an increase in the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any amount of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect Commitments of the Guaranteed ObligationsLenders (except as provided in ss.18.1); a forgiveness, reduction or (b) each waiveR of the Banks directly affected thereby: (i) increase principal of any unpaid Loan or any interest thereon or fee payable under the principal Loan Documents; a change in the amount of such Bank’s Commitment (or subject any Bank fee payable to a Lender hereunder; the postponement of any additional obligations, including the extension date fixed for any payment of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans Loan; an extension of the Maturity Date; a change in the manner of distribution of any payments to the Lenders or the Agent; the release of the Borrower or any Letter of Credit, L/C Obligations Guarantor or any Bankers’ Acceptance (includingCollateral except as otherwise provided in ss.5.3, without limitationss.5.4, interest on overdue amounts) ss.5.5 or any fees payable hereunderss.14.11; (iii) change an amendment OF the Commitment Percentage definition of Majority Lenders or Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; any modification to §2.4 require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; an amendment to this ss.29; a waiver of any indemnity of a Lender; or §21, (iv) alter an amendment of any provision relating to of thiS Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank ss.14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, 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 Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination part of the Majority Banks, and (2) Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate demand upon any of the amendments (Borrower or amendments and restatements) enumerated the Guarantors shall entitle the Borrower or 109 any Guarantor to other or further notice or demand in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Master Credit Agreement (Entertainment Properties Trust)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, the Issuing BankBorrower or the Guarantors, or any Swing Line Lenderas the case may be. Notwithstanding the foregoing, shall be effective none of the following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce any increase or reduction in the amount of the Commitment of a Lender (except as provided in §2.4 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Loan or any fees payable hereunderunder the Loan Documents; (iiif) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the Commitment Percentage manner of distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or the Agent; (h) the release of the Banks as required hereby or (v) extend or postpone Borrower, any date fixed for Distribution Interest Pledge, any payment in respect of principal or interest (includingEquity Issuance Pledge, without limitation, interest on overdue amounts) on the Notes or any L/C ObligationOwnership Interest Pledge, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent material portion of any other party to any Loan Documents if Collateral (provided, however, for the same is not objected to in writing by avoidance of doubt, the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it foregoing shall not be necessary deemed to obtain limit the consent or approval partial release by Agent of any Bank thatDistribution Interest Pledge, upon giving effect to Equity Issuance Pledge, Ownership Interest Pledge, or any such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment Collateral in full of connection with the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.sale or
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement may be given, and any term of this Agreement or of any other Loan Document to be given by the Banks may be given, 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 Borrowers or any other Person Loan Party of any terms of this Agreement or such other Loan Document or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; provided, however, that no such consent or amendment which affects Required Lenders. Notwithstanding the rights, duties or liabilities foregoing provisions of any Agent, this Section:
(a) none of the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personeach affected Lender:
(i) a decrease in the rate of interest on the Notes;
(ii) an increase in the amount of the Commitments of Lenders;
(iii) a forgiveness, as applicable; provided, further, that, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents (xother than in connection with the imposition or rescission of the Default Rate);
(iv) a decrease in the amount of any fee payable to a Lender hereunder;
(v) the Domestic Swing Line Commitment release of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryderany Borrower, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver any Guarantor or consent shall do any of the following unless in writing and signed by Collateral except as otherwise provided herein;
(avi) each Bank: (i) waive any condition set forth in §11; (ii) a change the definition of “Majority Banks”; (iii) amend to this §17; or 27;
(ivvii) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect postponement of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on, or fees in respect of, the Loans;
(viii) any change in the manner of principal distribution of any payments to Lenders or interest Agent;
(including, without limitation, interest on overdue amountsix) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent an amendment of the applicable Banks other than Defaulting Banks), except that definitions of Required Lenders or of any requirement for consent by all of Lenders; or
(x) the Commitment an amendment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect all of Lenders or the Required Lenders to require a lesser number of Lenders to approve such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveaction.
Appears in 1 contract
Samples: Credit Agreement (Emeritus Corp\wa\)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Term Loan Maturity Date or the Revolving Credit Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderGuarantor except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Required Lenders or Required Revolving Credit Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Revolving Credit Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders, the LKE Required Lenders or (v) extend the Required Revolving Credit Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or postpone waiver of any date fixed for any payment provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Lead Arrangers in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.11 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12) or the Term Loan Maturity Date (except as provided in §2.13); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Majority Revolving Credit Lenders, Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Majority Revolving Credit Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. The Borrower agrees to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be taken, any consent or approval required or permitted by Neither this Agreement or any other Loan Document to be given by the Banks may be given, any term of this Credit Agreement, any other of the Loan Document Documents, nor any term hereof or any other instrument, document or agreement related to this Agreement or the other Loan Documents or mentioned therein thereof may be amended, and the performance nor may any provision hereof or observance thereof be waived, except by an instrument in writing signed by the Borrowers Majority Lenders and, in the case of an amendment, by the Borrowers, except that in the event of (a) any increase in the amount of any Commitment (other than by way of assignment pursuant to Section 19 hereof), (b) any delay or extension in the terms of or any other Person scheduled reduction or increase of Commitments or repayment of the Loans as provided in Section 2.1 hereof, (c) any reduction in principal, interest or fees due hereunder or postponement of the payment thereof, (d) any release of Starter Outlet from the obligations under its Guaranty or the release of any portion of the terms thereof and Collateral for the Loans except as permitted in Section 9.5 hereof, (e) any waiver of any Default or Event of Default (as defined in due to the failure by the Borrowers to pay any sum due to any of the above-referenced documents Lenders hereunder, (f) any amendment of the definition of Permitted Overadvance Amount, (g) any amendment or instrumentswaiver to the frequency of the delivery of Borrowing Base reports under ss.8.4(f), (h) any amendment by more than twenty percent (20%) of the amount of the Clean Down Amount in ss.2.1 hereof, (i) any amendment of this Section 26 or of the definition of Majority Lenders or of any portion of this Credit Agreement as they relate to the relative priorities of payment among the Obligations, or (j) any amendment of the advance rates under the Borrowing Base, any amendment or waiver of consent may be waived (either generally or made only by an instrument in a particular instance and either retroactively or prospectively), only with the written consent writing signed by each of the Majority Banks; providedLenders and, howeverin the case of an amendment, that no such consent by the Borrowers. Any amendment to any provision hereunder or amendment which affects under any other Loan Document governing the rights, duties obligations or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lenderor the Syndication Agent, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Bankers' Acceptance Fees or of the amount of the Agents' fees or any fees Letter of Credit Fees payable hereunder; (iii) change for the Commitment Percentage Administrative Agent's account, in each case in its capacity as such, will be effective only if any instrument in writing has been signed by such affected Person. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of any Bank, except pursuant to §2.4 dealing or §21, (iv) alter any provision relating to delay or omission on the pro rata treatment part of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes Administrative Agent or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and demand upon the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and entitle the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Starter Corp)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by adversely affected thereby:
(a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11; (ii) change the definition other than a reduction or waiver of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or default interest);
(b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (iexcept as provided in §2.11 and §18.1);
(c) increase a forgiveness, reduction, or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents;
(d) a change in the amount of such Bank’s Commitment any fee payable to a Lender hereunder;
(or subject e) the postponement of any Bank to date fixed for any additional obligations, including the extension payment of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans Loan;
(f) an extension of the Term Loan Maturity Date, the First Amendment Term Loan Maturity Date or the Revolving Credit Maturity Date (except as provided in §2.12);
(g) a change in the manner of distribution of any payments to the Lenders or the Agent;
(h) the release of any Borrower or Guarantor except as otherwise provided in §5.2 or §5.4;
(i) an amendment of the definition of Majority Lenders, Required Lenders, Required Revolving Credit Lenders, Required Term Loan Lenders, Required First Amendment Term Loan Lenders or of any requirement for consent by all of the Lenders;
(j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrowers other than based on its Revolving Credit Commitment Percentage;
(k) an amendment to this §27;
(l) an amendment or modification to the definition of Unencumbered Asset Pool Availability (or any Letter defined term referenced therein) which would result in an increase in availability derived from Leased Assets; or
(m) an amendment of Creditany provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, L/C Obligations the Majority Lenders, Required Lenders, Required Revolving Credit Lenders, Required First Amendment Term Loan Lenders or Required Term Loan Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, (i) any term of this Agreement or of any other Loan Document relating to the rights or obligations of the Revolving Credit Lenders, and not any other Lenders, may be amended, and the performance or observance by Borrowers of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the written consent of the Required Revolving Credit Lenders or all Revolving Credit Lenders directly and adversely affected thereby, as applicable (and for the avoidance of doubt, consent of any Term Loan Lender or any Bankers’ Acceptance First Amendment Term Loan Lender shall not be required); and (includingii) any term of this Agreement or of any other Loan Document relating to the rights or obligations of the Term Loan Lenders, without limitationand not any other Lenders, interest on overdue amountsmay be amended, and the performance or observance by Borrowers of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Required Term Loan Lenders or all Term Loan Lenders directly or adversely affected thereby, as applicable (and for the avoidance of doubt, consent of any Revolving Credit Lender or any fees payable hereunder; First Amendment Term Loan Lender shall not be required) and (iii) change the Commitment Percentage any term of this Agreement or of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision other Loan Document relating to the pro rata treatment rights or obligations of the Banks First Amendment Term Loan Lenders, and not any other Lenders, may be amended, and the performance or observance by Borrowers of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, but only with, the written consent of the Required First Amendment Term Loan Lenders or all First Amendment Term Loan Lenders directly or adversely affected thereby, as required hereby applicable (and for the avoidance of doubt, consent of any Revolving Credit Lender or (v) any Term Loan Lender shall not be required). No waiver shall extend to or postpone affect any date fixed for obligation not expressly waived or impair any payment in respect right consequent thereon. No course of principal dealing or interest (including, without limitation, interest on overdue amounts) delay or omission on the Notes part of the Agent or any L/C Obligation, Lender in exercising any right shall operate as a waiver thereof or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Maturity Date; (g) a change in the Commitment Percentage manner of distribution of any Bankpayments to the Lenders or the Agent; (h) the release of the Borrower, any Collateral or all or substantially all of the Guarantors except pursuant as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or postpone waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any payment amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and KCM in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Loan Party of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders and, however, that no such consent or with respect to any amendment which affects the rights, duties or liabilities of any Agentterm of this Agreement or of any other instrument related hereto or mentioned herein, Borrower or the Guarantors, as the case may be. Subject to the immediately following sentence, any term of this Agreement or of any other Loan Document relating to the rights or obligations of the Lenders of a particular Class, and not Lenders of any other Class, may be amended, and the performance or observance by Borrower or any other Loan Party or Subsidiary of any such terms may be waived (either generally or in a particular instance and either retroactively or prospectively) with, and only with, the Issuing Bankwritten consent of the Required Class Lenders for such Class of Lenders. Notwithstanding the foregoing, or any Swing Line Lender, shall be effective none of the following may occur without the written consent of such Person, as applicableeach Lender adversely affected thereby: (a) a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest); provided, further, that, (xb) any increase or reduction in the Domestic Swing Line amount of the Commitment of a Domestic Swing Line Lender reflected (except as provided in §2.4, §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on Schedule 1 the Loan or any fees payable under the Loan Documents (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (f) an extension of the Maturity Date (except as provided in §2.12 with respect to extension of the Revolving Credit Maturity Date); (g) a change in the manner of distribution of any payments to Lenders or Agent; (h) the release of Borrower or any Guarantor or any reduction of any Guarantor’s liability under the Guaranty except as otherwise provided in §5.5; (i) an amendment of the definition of Required Lenders or Required Class Lenders or of any requirement for consent by all Lenders or all Lenders of a certain Class; (j) any modification to require a Revolving Credit Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by Borrower other than based on its Applicable Percentage; (k) an amendment to this §27; (l) an amendment to the definition of Commitment Percentage, Revolving Credit Commitment Percentage, Term Loan Commitment Percentage, 2017 Term Loan Commitment Percentage, 2018 Term Loan Commitment Percentage, 2021 Term Loan Commitment Percentage, or Applicable Percentage; or (m) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all Lenders, the Required Lenders, or the Required Class Lenders to require a lesser number of Lenders to approve such action. Notwithstanding the foregoing, the provisions of §14 may not be amended from time to time by Ryder, without the Administrative written consent of Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following shall, unless in writing and signed by Agent in addition to the Lenders required above to take such action, amend, waive or consent to any departure from, the definitions of LIBOR, LIBOR Screen Rate, Benchmark Replacement Conforming Changes or the provisions of §4.17) (a) each Bank: (i) waive except in accordance with §4.17). There shall be no amendment, modification or waiver of any condition set forth provision in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in Loan Documents with respect to Swing Loans without the consent of the Guaranteed Obligations; Swing Loan Lenders, nor any amendment, modification or (b) each waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Banks directly affected thereby: (i) increase the principal amount Issuing Lenders. No waiver shall extend to or affect any obligation not expressly waived or impair any right consequent thereon. No course of such Bank’s Commitment (dealing or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of delay or interest omission on the Loans part of Agent or any Letter of Credit, L/C Obligations Lender in exercising any right shall operate as a waiver thereof or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Affected Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Affected Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Affected Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein In the event that any Lender (a “Non-Consenting Lender”) shall fail to the contrary, (A) in order consent to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amendeda waiver or amendment to, or rights or privileges thereunder waiveda departure from, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating which requires the consent of all Lenders and that has been consented to by Agent and the pro rata sharing Required Lenders, then Borrower shall have the right, upon written demand to such Non-Consenting Lender and Agent given within 30 days after a Lender fails to consent, refuses to consent or is deemed to have refused to consent to such request (a “Consent Request Date”), to cause such Non-Consenting Lender to assign its rights and obligations under this Agreement (including, without limitation, its Commitment or Commitments, the Loans owing to it and the Note or Notes, if any, held by it) to an existing Lender or a new Lender, provided that (i) as of payments among the Banks to the extent necessary to effectuate any such Consent Request Date and as of the amendments (date of Borrower’s written demand to replace such Non-Consenting Lender, no Default or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers Event of Default shall have jointly identified an inconsistency, obvious error occurred and be continuing other than a Default or omission, in each case, Event of a technical or immaterial nature, in any provision Default that resulted solely from the subject matter of the Loan Documents, then waiver or amendment for which such consent was being solicited from the Agents Lenders by Agent and (ii) the Borrowers replacement of any Non-Consenting Lender 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved consummated in accordance with this and subject to the provisions of §17, it shall not be necessary to obtain 4.15. The existing or new Lender that is purchasing the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full interests of the principal Non-Consenting Lender shall purchase such interests and shall assume the rights and obligations of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank Non-Consenting Lender under this Agreement upon execution by such existing or new Lender of an Assignment and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAcceptance Agreement delivered pursuant to §18.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line each Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by : (a) each Bank: a reduction in the rate of interest on the Notes (i) waive any condition set forth in §11other than a reduction or waiver of default interest); (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each an increase in the amount of the Banks directly affected thereby: Commitments of the Lenders (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitmentexcept as provided in §2.10 and §18.1); (iic) reduce a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loans; (f) an extension of the Maturity Date (except as provided in §2.9); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderCollateral except as otherwise provided in this Agreement; (iiii) change an amendment of the Commitment Percentage definition of Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank shall have any right Lenders to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent such action. The provisions of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) the Commitment of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. The Borrower agrees to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Pacific Office Properties Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Revolving Credit Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of any Borrower or any Letter Collateral except as otherwise provided in §5.4, §5.6 or §5.7; (i) an amendment of Creditthe definition of Majority Lenders, L/C Obligations Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrowers other than based on its Commitment Percentage; (k) an amendment to this §27; or (l) an amendment of any provision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, the Majority Lenders or the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. 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 part of the Agent or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) Lender in exercising any right shall operate as a waiver thereof or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment Super-Majority Lenders: a modification or waiver of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in §11; 8.7, §9.1, §9.2, §9.3, §9.4, §9.5 or with respect to the Borrowing Base (ii) change including any definitions relating to such provisions). Notwithstanding the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryderforegoing, in its capacity as guarantor, from its obligations under §5 hereof or in respect none of the Guaranteed Obligations; or (b) following may occur without the written consent of each of the Banks Lender directly affected thereby: a decrease in the rate of interest on any Loan (i) but excluding interest at the default rate); an increase in the amount of the Commitments of the Lenders; a reduction or waiver of the principal of any unpaid Loan or any interest thereon; a change in the amount of such Bank’s Commitment (any fee payable to a Lender hereunder; any extension, postponement or subject waiver of the date on which any Bank fees are payable to any additional obligations, including the a Lender hereunder; except as provided in §4.15 an extension of such Bank’s Commitment)the Maturity Date; (ii) reduce the release of the Borrowers or the Guarantor which has executed any of the Loan Documents or any of the Collateral except as otherwise provided herein; any modification to require a Lender to fund a pro rata share of a request for an advance of the Loans made by the Borrowers other than based on its Commitment Percentage; a change to this §27; any postponement of any date fixed for any payment of principal of or interest on the Loans or Loan; any Letter change in the manner of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage distribution of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating payments to the pro rata treatment Lenders or Agent; or an amendment of the Banks as required hereby definition of Majority Lenders or (v) extend Super-Majority Lenders or postpone of any date fixed requirement for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that (x) Lenders. The amount of the Commitment Agent’s fee payable for the Agent’s account and the provisions of any Defaulting Bank §14 may not be increased or extended amended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions Agent. The provisions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably §14 may not be amended nor any change made in the benefits amount of any fee payable to the Agent without the written consent of the Agent. The Borrowers agree to enter into such modifications or amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding assignment of Commitments provided that no such credit facilities in any determination of the Majority Banks, and (2) to change, modify amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (obligations of the Borrowers hereunder. No waiver shall extend to or amendments and restatements) enumerated affect any 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 Lender in this clause (F), (G) if following the Closing Date, the Agents and exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and entitle the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including Except as otherwise expressly provided in this Agreement including, without limitation the giving definition of notice) may be taken“Unencumbered Pool Value”, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent modification or amendment which affects waiver of the rights, duties or liabilities definition of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective Unencumbered Pool Availability may occur without the written consent of such PersonAgent, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Documentation Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) Majority Lenders. Notwithstanding the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In additionforegoing, no amendment, modification or waiver or consent shall do of any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in §11; (ii) change 7.16, §8.7, §9.1, §9.2, §9.3, §9.4, §9.5, §9.6 or §9.7 may occur without the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect written consent of the Guaranteed Obligations; or (b) each Majority Lenders. Notwithstanding the foregoing, none of the Banks following may occur without the written consent of each Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) an extension of the Revolving Credit Maturity Date or Term Loan Maturity Date (except as provided in §2.12); (g) a change in the Commitment Percentage manner of distribution of any Bankpayments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or the removal of any Unencumbered Pool Properties except pursuant as otherwise provided in this Agreement; (i) an amendment of the definition of Majority Lenders, Majority Revolving Credit Lenders or Majority Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, Majority Revolving Credit Lenders or (v) extend the Majority Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or postpone waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any payment amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment Lender. The Borrower agrees to enter into such modifications or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arranger in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Carter Validus Mission Critical REIT, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement may be given, and any term of this Agreement or of any other Loan Document to be given by the Banks may be given, 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 Borrowers Borrower or any other Person Loan Party of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent or approval of the Majority Banks; providedRequired Lenders, however, that no and in such case such consent or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, approval shall be effective binding on all Lenders. Notwithstanding the foregoing provisions of this Section:
(a) none of the following may occur without the written consent of such Person, as applicable; provided, further, that, each affected Lender:
(xi) a decrease in the Domestic Swing Line Commitment rate of a Domestic Swing Line Lender reflected interest on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect Notes;
(ii) an increase in the Domestic Swing Line amount of the Commitment of such Domestic Swing Line Lender, except as provided in §2.9;
(iii) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents (other than in connection with the imposition or rescission of the Default Rate);
(iv) a decrease in the amount of any fee payable to a Lender hereunder;
(v) an extension of a Maturity Date except as provided in effect from time §3.1(b) with respect to time, and the Revolving Credit Maturity Date;
(yvi) the L/C Commitment release of an Issuing Bank reflected on Schedule 1 may be amended from time to time by RyderBorrower, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver any Guarantor or consent shall do any of the following unless in writing and signed by Collateral except as otherwise provided herein;
(avii) each Bank: (i) waive any condition set forth in §11; (ii) a change the definition of “Majority Banks”; (iii) amend to this §17; or 27;
(ivviii) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect postponement of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase the principal amount of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment of principal of or interest on, or fees in respect of principal or interest (includingof, without limitation, interest on overdue amountsthe Loans except as provided in §3.1(b) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything with respect to the contrary herein, no Defaulting Bank shall have Revolving Credit Maturity Date;
(ix) any right change in the manner of distribution of any payments to approve Lenders or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except that Agent;
(x) an amendment of the Commitment definition of Required Lenders or of any Defaulting Bank may not be increased or extended without the requirement for consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, Lenders; or
(Fxi) this Agreement may be amended (or amended and restated) with the written consent an amendment of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits any provision of this Agreement and or the other Loan Documents with which requires the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect all of Lenders or the Required Lenders to require a lesser number of Lenders to approve such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveaction.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Forestar Group Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or any Guarantor except as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower or participation in a Letter of Credit, L/C Obligations Credit other than based on its Commitment Percentage; (k) an amendment to this §27; (l) a waiver of any Default or any Bankers’ Acceptance (including, without limitation, interest on overdue amountsEvent of Default under §12.1(a) or any fees payable hereunder§12.1(b); or (iiim) change the Commitment Percentage an amendment of any Bank, except pursuant to §2.4 provision of this Agreement or §21, (iv) alter any provision relating to the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent Lender. The provisions of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement 14 may not be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with without the written consent of the Majority BanksAgent. There shall be no amendment, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one modification or more additional credit facilities to this Agreement, to permit the extensions waiver of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably any provision in the benefits of this Agreement and the other Loan Documents with respect to Letters of Credit or Issuing Lender without the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination consent of the Majority BanksIssuing Lender. There shall be no amendment, and (2) to change, modify modification or alter the provisions waiver of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then Documents with respect to Swing Loans or Swing Loan Lender without the Agents written consent of Swing Loan Lender. The Borrower and the Borrowers shall be permitted Guarantors each agree to amend enter into such provision and such amendment shall become effective without any further action modifications or consent amendments of any other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and or the other Loan Documents at as reasonably may be requested by KeyBank in connection with the time syndication of the Loan, provided that no such amendment, amendment and restatement or modification materially affects or increases any of the obligations of the Borrower or the Guarantors hereunder. 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the Guarantors shall entitle the Borrower or the Guarantors to other or further notice or demand in similar or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Mid America Apartment Communities Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, any other Loan Document or of any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person Guarantor of any terms of this Agreement, any other Loan Document or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly adversely affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon or fee payable under the Loan Documents; (d) a reduction in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.7); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable Collateral except as otherwise permitted hereunder; (iiii) change an amendment of the Commitment Percentage definition of Required Lenders or of any Bank, except pursuant requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (k) an amendment to this §2.4 27; or §21, (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) the Required Lenders to require a lesser number of Lenders to approve such action. The provisions of §14 may not be amended without the written consent of the Agent. No waiver shall extend to or postpone affect any date fixed for obligation not expressly waived or impair any payment in respect right consequent thereon. No course of principal dealing or interest (including, without limitation, interest on overdue amounts) delay or omission on the Notes part of the Agent or any L/C Obligation, Lender in exercising any right shall operate as a waiver thereof or any fee hereunderotherwise be prejudicial thereto. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting BanksLenders), except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveLender.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of noticea) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bankof: (i) waive any condition set forth in §11the case of a reduction in the rate of interest on the Notes (other than a reduction or waiver of default interest), the consent of each Lender holding a Note affected by such interest rate reduction; (ii) change in the definition case of “Majority Banks”an increase in the Commitment or the amount of the Commitments of the Lenders (in each case, except as provided in §2.11 and §18.1), the consent of each Lender whose Commitment is increased; (iii) amend this §17in the case of a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents, the consent of each Lender that would have otherwise received such principal, interest or fee; or (iv) release in the case of a change in the amount of any Borrower from its Obligations or release Ryderfee payable to a Lender hereunder, the consent of each Lender to which such fee would otherwise be owed; (v) in its capacity as guarantor, from its obligations under §5 hereof or in respect the case of the Guaranteed Obligations; or (b) each postponement of the Banks directly affected thereby: (i) increase the principal amount any date fixed for any payment of such Bank’s Commitment (or subject any Bank to any additional obligations, including the extension of such Bank’s Commitment); (ii) reduce the principal of or interest on the Loans Loan, the consent of each Lender that would otherwise have received such principal or interest at an earlier date; (vi) in the case of an extension of the Revolving Credit Maturity Date each Lender whose Commitment is thereby extended; (vii) in the case of a change in the manner of distribution of any payments to the Lenders or the Agent, the consent of each Lender or the Agent directly affected thereby; (viii) in the case of the release of the Borrower, any Guarantor or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance Collateral except as otherwise provided in this Agreement (including, without limitation, interest on overdue amounts) or the release of any fees payable hereunderBorrowing Base Assets), each Lender directly affected thereby; (iiiix) change in the Commitment Percentage case of an amendment of the definition of Required Lenders or of any Bankrequirement for consent by all of the Lenders or all affected Lenders, except pursuant each Lender directly affected thereby; (x) in the case of any modification to require a Lender to fund a pro rata share of a request for an advance of a Loan made by the Borrower other than based on such Lender’s applicable Commitment Percentage, the consent of each such Lender thereby required to fund a pro rata share other than based on its applicable Commitment Percentage; (xi) in the case of an amendment to this §2.4 27, each Lender directly affected thereby; or §21, (ivxii) alter in the case of an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders, to require a lesser number of principal or interest (includingLenders to approve such action, without limitation, interest on overdue amounts) on the Notes or any L/C Obligationeach Lender directly affected thereby. Any fee letter may be amended, or rights or privileges thereunder waived, in a writing executed by the parties thereto. The provisions of §14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or waiver of any fee hereunderprovision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender, nor any amendment, modification or waiver of any provision in the Loan Documents with respect to Letters of Credit without the consent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding 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 part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall entitle the Borrower to other or further notice or demand in similar or other circumstances.
(b) Further notwithstanding anything herein to the contrarycontrary in this §27, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to if the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, Agent and the applicable Banks providing such additional CommitmentsBorrower have jointly identified an ambiguity, (B) this Agreement may be amended pursuant to §6.17 as contemplated omission, mistake or defect in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the an inconsistency between provisions of this Agreement relating to and/or the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the other Loan Documents, then the Agents Agent and the Borrowers Borrower shall be permitted to amend such provision and or provisions to cure such ambiguity, omission, mistake, defect or inconsistency so long as to do so would not adversely affect the interest of the Lenders. Any such amendment shall become effective without any further action or consent of any of other party to any Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveAgreement.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.11 and §18.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans Loan; (f) an extension of the Maturity Date (except as provided in §2.12); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower, any Guarantor or any Collateral except as otherwise provided in this Agreement; (i) an amendment of the definition of Required Lenders, the Majority Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower or participation in a Swing Loan or Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest Credit other than based on overdue amounts) or any fees payable hereunderits Commitment Percentage; (iiik) change the Commitment Percentage an amendment to this §27; or (l) an amendment of any Bankprovision of this Agreement or the Loan Documents which requires the approval of all of the Lenders, except pursuant the Required Lenders, or the Majority Lenders to require a lesser number of Lenders to approve such action. The provisions of §2.4 14 may not be amended without the written consent of the Agent. There shall be no amendment, modification or §21, (iv) alter waiver of any provision relating in the Loan Documents with respect to Swing Loans without the pro rata treatment consent of the Banks as required hereby Swing Loan Lender, nor any amendment, modification or (v) extend or postpone waiver of any date fixed for any payment provision in the Loan Documents with respect to Letters of principal or interest (including, Credit without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender and (y) any waiver, amendment or modification requiring the consent of all Banks Lenders or each affected Bank Lender that by its terms affects any Defaulting Bank Lender more adversely than other affected Banks Lenders shall require the consent of such Defaulting BankLender. Notwithstanding anything herein The Borrower agrees to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for enter into such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arrangers in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower hereunder. 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 Agents and part of the Borrowers Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower shall become effective without any entitle the Borrower to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
Samples: Credit Agreement (Monogram Residential Trust, Inc.)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedRequired Lenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Loans (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders; (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than interest at the Default Rate) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) a change in the Commitment Percentage manner of distribution of any Bank, except payments to the Lenders or the Agent pursuant to §2.4 12.5 or §21, 14.5(a); (ivg) alter the release of the Borrower or any Guarantor except as otherwise provided in this Agreement; (h) an amendment of the definition of Required Lenders or of any requirement for consent by all of the Lenders; (i) any modification to require a Lender to fund a pro rata share of a request for an advance of the Loan made by the Borrower other than based on its Commitment Percentage; (j) an amendment to this §27; (k) a waiver of any Default or Event of Default under §12.1(a) or §12.1(b); or (1) an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders or (v) extend or postpone any date fixed for any payment in respect the Required Lenders to require a lesser number of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderLenders to approve such action. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks), Lenders) except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended without the consent of such Bank Lender. The provisions of §14 may not be amended without the written consent of the Agent. The Borrower and (y) the Guarantors each agree to enter into such modifications or amendments of this Agreement or the other Loan Documents as reasonably may be requested by JPMorgan in connection with any waiversyndication of the Loan, provided that no such amendment or modification requiring materially affects or increases any of the consent obligations of all Banks the Borrower or each affected Bank that by its terms affects the Guarantors hereunder. No waiver shall extend to or affect any Defaulting Bank more adversely than 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 Lender in exercising any right shall operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon any of the Borrower or the Guarantors shall entitle the Borrower or the Guarantors to other affected Banks shall require the consent of such Defaulting Bankor further notice or demand in similar or other circumstances. Notwithstanding anything set forth herein to the contrary, if (Ai) X.X. Xxxxxx Securities LLC acts as a joint lead arranger (or is offered such position in a facility that contains substantially the same terms set forth in the draft of the KeyBank, National Association term sheet for such facility, dated April 3, 2013, and declines to so act) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for a refinancing of the Existing Revolving Credit Facility within four (4) months after the Closing Date (such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrowerrefinanced facility, the applicable Agent, and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks“New Revolver Facility”), and (2ii) to changethe representations and warranties, modify or alter the provisions covenants and/or events of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments default (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omissionincluding, in each case, any related definitions) in such New Revolver Facility that are also included in this Agreement are revised from those set forth in the Existing Revolving Credit Facility; then, the representations and warranties set forth in §6, the affirmative covenants set forth in §7, the negative covenants set forth in §8, the financial covenants set forth in §9 and/or the events of a technical or immaterial naturedefault set forth in §12 (and, in any provision each case, the related definitions), as applicable, of this Agreement shall be deemed to be amended automatically to conform with the corresponding terms of the Loan DocumentsNew Revolver Facility (each, then a “Modification”); provided that (w) no Modification made pursuant to this paragraph that would result in the Agents and Lenders being treated differently than the Borrowers lenders under the New Revolver Facility, shall be permitted made pursuant to amend such provision and such amendment shall become effective this paragraph without any further action or the prior written consent of the Required Lenders hereunder, (x) all Lenders shall have received notice of any other party to such proposed Modifications and of the New Revolver Facility, (y) no Modifications of the New Revolver Facility shall result in any Loan Documents if the same is not objected to in writing by the Majority Banks within five corresponding amendment, modification, restatement, replacement or waiver of §12.1(a) or (5) Domestic Business Days following receipt of notice thereofb), and (Hz) as to any amendmentif requested by the Borrower or the Agent, the Borrower, the Guarantors, the Agent and each Lender shall execute and deliver a written amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank restatement of, or accrued for the account of such Bank under waiver under, as applicable, this Agreement and memorializing the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectiveModifications.
Appears in 1 contract
Samples: Term Loan Agreement (Mid America Apartment Communities Inc)
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be takenExcept as otherwise expressly provided in this Agreement, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks may be given, and any term of this Agreement, Agreement or of any other Loan Document or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers Borrower or any other Person the Guarantors of any terms of this Agreement or such other instrument or the terms thereof and continuance of 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)) with, but only with with, the written consent of the Majority Banks; providedLenders. Notwithstanding the foregoing, however, that no such consent or amendment which affects none of the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective following may occur without the written consent of such Personthe Required Lenders, as applicable; provided, further, that, (x) a modification or waiver of the Domestic Swing Line Commitment definition of a Domestic Swing Line Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver Unencumbered Pool Availability or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition covenants set forth in in, §11; (ii) change 8.1 or §8.8. Notwithstanding the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryderforegoing, in its capacity as guarantor, from its obligations under §5 hereof or in respect none of the Guaranteed Obligations; or (b) following may occur without the written consent of each of the Banks Lender directly affected thereby: (ia) increase a reduction in the principal amount rate of such Bank’s Commitment interest on the Notes (other than a reduction or subject any Bank to any additional obligations, including the extension waiver of such Bank’s Commitmentdefault interest); (iib) reduce an increase in the amount of the Commitments of the Lenders (except as provided in §2.8 and §13.1); (c) a forgiveness, reduction or waiver of the principal of any unpaid Loan or any interest thereon (other than a reduction or waiver of default interest) or fee payable under the Loan Documents; (d) a change in the amount of any fee payable to a Lender hereunder; (e) the postponement of any date fixed for any payment of principal of or interest on the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance (including, without limitation, interest on overdue amounts) or any fees payable hereunderLoan; (iiif) change an extension of the Commitment Percentage Maturity Date (other than an extension of any Bank, except the Maturity Date pursuant to §2.4 2.9); (g) a change in the manner of distribution of any payments to the Lenders or the Agent; (h) the release of the Borrower or the Guarantors except as otherwise provided in this Agreement; (i) an amendment of the definition of Majority Lenders or Required Lenders or of any requirement for consent by all of the Lenders; (j) any modification to require a Lender to fund a pro rata share of a request for an advance of the Revolving Credit Loan made by the Borrower or a participation in a Swing Loan or Letter of Credit other than based on its Commitment Percentage; (k) an amendment to this §21, 14.9; (ivl) alter an amendment of any provision relating to of this Agreement or the pro rata treatment Loan Documents which requires the approval of all of the Banks as required hereby Lenders, the Required Lenders or the Majority Lenders to require a lesser number of Lenders to approve such action; or (vm) extend a release of the Collateral Account. The provisions of Article XII may not be amended without the written consent of the Agent. There shall be no amendment, modification or postpone waiver of any date fixed for provision in the Loan Documents with respect to Swing Loans without the consent of the Swing Loan Lender. There shall be no amendment, modification or waiver of any payment provision in the Loan Documents with respect to Letters of principal Credit or interest (including, Issuing Lender without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunderconsent of the Issuing Lender. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks Lenders or each affected Bank Lender may be effected with the consent of the applicable Banks Lenders other than Defaulting Banks)Lenders, except that (x) the Commitment of any Defaulting Bank Lender may not be increased or extended increased, nor may the Maturity Date with respect to the Commitment of a Defaulting Lender be extended, in each case, without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting BankLender. Notwithstanding anything herein to the contrary, (A) in order to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable Agent, The Borrower and the applicable Banks providing Guarantors agree to enter into such additional Commitments, (B) this Agreement may be amended pursuant to §6.17 as contemplated in such section, (C) the Fee Letter may be amended, modifications or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits amendments of this Agreement and or the other Loan Documents as reasonably may be requested by KeyBank and the Arrangers in connection with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination syndication of the Majority BanksLoan, and (2) to change, modify provided that no such amendment or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate modification materially affects or increases any of the amendments (or amendments and restatements) enumerated in this clause (F), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision obligations of the Loan Documents, then Borrower or the Agents and Guarantors hereunder. 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 Borrowers part of the Agent or any Lender in exercising any right shall operate as a waiver thereof or otherwise be permitted prejudicial thereto. No notice to amend such provision and such amendment or demand upon the Borrower or the Guarantors shall become effective without any entitle the Borrower or the Guarantors to other or further action notice or consent of any other party to any Loan Documents if the same is not objected to demand in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement similar or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effectivecircumstances.
Appears in 1 contract
CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be taken (including the giving of notice) may be taken, any consent or approval required or permitted by this Agreement or any other Loan Document to be given by the Banks Lenders may be given, and any term of this Agreement, any the other Loan Document Transaction Documents or any other instrument, document or agreement instrument related to this Agreement or the other Loan Documents hereto or mentioned therein herein may be amended, and the performance or observance by the Borrowers or any other Person Borrower of any terms of this Agreement, the terms thereof and other Transaction Documents or such other instrument or the continuance of 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)) with, but only with with, the written consent of the Borrower and the written consent of the Majority Banks; Lenders (unless otherwise specifically provided). Notwithstanding the foregoing, howeverno amendment, that no such consent modification or amendment which affects the rights, duties or liabilities of any Agent, the Issuing Bank, or any Swing Line Lender, shall be effective waiver shall: (a) without the written consent of such Person, as applicable; provided, further, that, (x) the Domestic Swing Line Commitment of a Domestic Swing Line Borrower and each Lender reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Domestic Swing Line Lender, to reflect the Domestic Swing Line Commitment of such Domestic Swing Line Lender in effect from time to time, and (y) the L/C Commitment of an Issuing Bank reflected on Schedule 1 may be amended from time to time by Ryder, the Administrative Agent and such Issuing Bank, to reflect the L/C Commitment of such Issuing Bank in effect from time to time. In addition, no amendment, waiver or consent shall do any of the following unless in writing and signed by (a) each Bank: (i) waive any condition set forth in §11; (ii) change the definition of “Majority Banks”; (iii) amend this §17; or (iv) release any Borrower from its Obligations or release Ryder, in its capacity as guarantor, from its obligations under §5 hereof or in respect of the Guaranteed Obligations; or (b) each of the Banks directly affected thereby: (i) increase reduce, delay or forgive the payment or repayment when due of any Supplemental Principal Payment Amount, the unpaid principal of any Loans or any fees or other amounts payable to any Lender hereunder or under any other Transaction Document or reduce the amount or rate of such Bank’s Commitment interest (or subject fees) on the Loans or the priority thereof (other than interest at the Default Rate accruing before or after the date of any Bank to any additional obligations, including waiver by the extension Majority Lenders of such Bank’s Commitmentthe Event of Default relating thereto); (ii) reduce the postpone or extend any Payment Date or any other regularly scheduled dates for payments of principal of of, or interest on on, the Loans or any Letter of Credit, L/C Obligations or any Bankers’ Acceptance other amounts payable to such Lender (including, without limitation, interest on overdue amounts) or any fees payable hereunder; (iii) change the Commitment Percentage of any Bank, except pursuant to §2.4 or §21, (iv) alter any provision relating to the pro rata treatment of the Banks as required hereby or (v) extend or postpone any date fixed for any payment in respect of principal or interest (including, without limitation, interest on overdue amounts) on the Notes or any L/C Obligation, or any fee hereunder. Notwithstanding anything to the contrary herein, no Defaulting Bank 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 Banks or each affected Bank may be effected with the consent of the applicable Banks other than Defaulting Banks), except it being understood that (x) the Commitment of any Defaulting Bank may not be increased or extended without the consent of such Bank and (y) any waiver, amendment or modification requiring the consent of all Banks or each affected Bank that by its terms affects any Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting Bank. Notwithstanding anything herein to the contrary, (A) in order a waiver of the application of the default rate of interest pursuant to implement any additional Commitments in accordance with §2.1.5, this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Commitments in accordance with §2.1.5) by each Borrower, the applicable AgentSection 301(i), and the applicable Banks providing such additional Commitments, (B) this Agreement may be amended any vote to rescind any acceleration made pursuant to §6.17 as contemplated in such section, (C) Section 802 of amounts owing with respect to the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed Loans and other Outstanding Obligations shall require only by the parties thereto, (D) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that affects the Obligations, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (E) the Majority Banks shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Banks, (F) this Agreement may be amended (or amended and restated) with the written consent approval of the Majority Banks, the Agents, each Borrower, and the relevant Banks providing such additional credit facilities (1) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and the accrued interest and fees in respect thereof and to include appropriately the Banks holding such credit facilities in any determination of the Majority Banks, and (2) to change, modify or alter the provisions of this Agreement relating to the pro rata sharing of payments among the Banks to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in this clause (FLenders), (G) if following the Closing Date, the Agents and the Borrowers shall have jointly identified an inconsistency, obvious error or omission, in each case, of a technical or immaterial nature, in any provision of the Loan Documents, then the Agents and the Borrowers 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 Loan Documents if the same is not objected to in writing by the Majority Banks within five (5) Domestic Business Days following receipt of notice thereof, and (H) as to any amendment, amendment and restatement or other modifications otherwise approved in accordance with this §17, it shall not be necessary to obtain the consent or approval of any Bank that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Obligations so long as such Bank receives payment in full of the principal of and interest accrued on Obligations made by, and all other amounts owing to, such Bank or accrued for the account of such Bank under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.;
Appears in 1 contract
Samples: Loan and Security Agreement (Triton International LTD)
