Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof. 11.6.2 This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, and each Lender executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any Lender's or Agent's actual intentions. 11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 6 contracts
Samples: Warehousing Credit Agreement (PLM Equipment Growth Fund Vi), Warehousing Credit Agreement (Professional Lease Management Income Fund I LLC), Warehousing Credit Agreement (PLM Equipment Growth Fund V)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders between Borrower and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Borrower or AgentLender. Borrowers, FSI, Lenders Borrower and Agent Lender agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any Borrower’s or Lender's or Agent's ’s actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersLender and Borrower. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.4 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 3 contracts
Samples: Loan and Security Agreement (Codexis Inc), Loan and Security Agreement (Maxygen Inc), Loan and Security Agreement (Riverbed Technology, Inc.)
Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, and each Lender executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'’, FSI's ’s any Lender's ’s or Agent's ’s actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 3 contracts
Samples: Warehousing Credit Agreement (PLM Equipment Growth Fund V), Warehousing Credit Agreement (PLM Equipment Growth & Income Fund Vii), Warehousing Credit Agreement (PLM Equipment Growth Fund Vi)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (A) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders between Borrower and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (B) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Borrower or AgentLender. Borrowers, FSI, Lenders Borrower and Agent Lender agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any LenderBorrower's or AgentLender's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (aC) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersLender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 SECTION 12.4 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 3 contracts
Samples: Loan and Security Agreement (Soundbite Communications Inc), Loan and Security Agreement (Alnylam Pharmaceuticals Inc), Loan and Security Agreement (Soundbite Communications Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders between the Grantors and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, the Grantors and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Grantors or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any Lender's or Agent's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersLender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI Grantor in any case shall entitle any Borrower or FSI Grantor to any other or further notice or demand in similar or other circumstances. No delay or omission of Lender to exercise any right, whether before or after a default hereunder, shall impair any such right or shall be construed to be a waiver of any right or default, and the acceptance at any time by Lender of any past-due amount shall not be deemed to be a waiver of the right to require prompt payment when due of any other amounts then or thereafter due and payable.
(d) Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.4 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSIthe Grantors.
Appears in 3 contracts
Samples: Loan and Security Agreement (Trestle Holdings Inc), Second Loan and Security Agreement (Trestle Holdings Inc), Loan and Security Agreement (Clarient, Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders between Borrower and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Borrower or AgentLender. Borrowers, FSI, Lenders Borrower and Agent Lender agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any LenderBorrower's or AgentLender's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersLender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 SECTION 12.4 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vnus Medical Technologies Inc), Loan and Security Agreement (Nextcard Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes Note and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among BorrowersBorrower, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, and each Lender the Lenders executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSIBorrower, Lenders or Agent. Borrowers, FSIBorrower, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower's, FSI's any Lender's or Agent's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI Guarantor from, any provision in this Agreement or any of the other Loan Documents relating to (ai) the definition of "Borrowing Base" or "Requisite Lenders," (bii) any increase of the amount of any Commitment, (ciii) any reduction of principal, interest or fees payable hereunder, (div) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (ev) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of the Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, and on Borrower, and on FSI.
Appears in 2 contracts
Samples: Warehousing Credit Agreement (PLM International Inc), Warehousing Credit Agreement (American Finance Group Inc /De/)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders between Borrower and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Borrower or AgentLender. Borrowers, FSI, Lenders Borrower and Agent Lender agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any Borrower’s or Lender's or Agent's ’s actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersLender and Borrower. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.5 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Knightscope, Inc.)
Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (a) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender Lenders executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent or Lenders. Borrower, Agent and Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower’s, FSI's Agent’s or any Lender's or Agent's ’s actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersAgent, each of the Lenders and Borrower. Notwithstanding the foregoing, in all cases, any material change of maturity dates, any interest rate reduction, or any release of any Collateral or any guarantor, or any forbearances or waiver of rights under the Loan Documents shall require the written consent of each Lender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.4 shall be binding upon Agent, each Lender then party hereto and each subsequent Lender, on Borrower, and on FSIBorrower and on their respective successors and assigns.
Appears in 2 contracts
Samples: Equipment Loan and Security Agreement (Renovis Inc), Equipment Loan and Security Agreement (Renovis Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. The Loan Parties, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent agree Lenxxxx xxree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'the Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunderSubject to clauses (d), (de), (f) any postponement and (g) of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any 14.4, except as otherwise expressly set forth herein any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite the Required Lenders. Any waiver or , Borrower, Agent and any other Loan Party party to the Loan Document being amended, provided however, that Borrower may amend the Disclosure Letter without the consent with respect to any provision of the Loan Documents shall be effective Required Lenders only as provided in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any Article 5; provided, however, that no such amendment, modification, discharge or waiver, unless in writing and signed by all the Supermajority Lenders, do any of the following:
(i) postpone or, delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of interest (other than the waiver of interest at the Default Rate), fees, premiums or consent effected other amounts (other than principal) due to the Lenders (or any of them) hereunder or under any other Loan Document; andthe schedule payment of the September 30 Payment; and
(ii) subordinate the Lien securing the Term Loans to any other Lien securing any material other Indebtedness for borrowed money except in accordance the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be secured by a Lien that is senior to the Lien securing the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions.any Term Loan tranche after the Seventh Amendment Effective Date solely with this respect to proceeds of Permitted Equity Issuances as provided in Section 11.6 shall be binding upon 2.6(c)(ii).
(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (iv)(a)(x), (iv)(a)(y) and (iv)(b) below, each Lender then party hereto Bank Product Provider holding Secured Obligations directly and each subsequent Lenderadversely affected thereby at such time) directly and adversely affected thereby, on Borroweror, in connection with case of any Restructuring and with respect to clauses (ii), (iv), (v), and on FSI.(vi) below only, the Supermajority Lenders, shall do any of the following:
(i) increase or extend the Term Loan Commitment of such Lender;
(ii) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of principal (other than the September 30 Payment which may be effected upon consent of the Supermajority Lenders), interest (other than the waiver of interest at the Default Rate which may be effected upon consent of Required Lenders), fees, premiums or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document;
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders Borrower and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof. Borrower acknowledges that it is not relying on any representation or agreement made by Lender or any employee, attorney or agent thereof, other than the specific agreements set forth in this Agreement and the Loan Documents.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Borrower or AgentLender. Borrowers, FSI, Lenders Borrower and Agent Lender agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any LenderBorrower's or AgentLender's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersLender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.4 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes and each of the other Loan Documents dated as of and the date hereofWarrants, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the partiesthem, whether written or oral, respecting the subject matter hereof, including that certain term sheet dated September 17, 2021 issued by SCI to Borrower.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. Loan Parties, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Xxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'their Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersAgent, the Required Lenders and Borrower, provided however, that any amendment to the Commitment or any decrease in the principal amount of any Advance shall also require the written consent of the Lender whose Commitment or principal amount of any Advance is being amended and, provided, further, that Borrower may amend the Perfection Certificate and the Disclosure Schedules without the consent of the Agent or the Required Lenders only as provided in Article 5. Each Loan Party agrees that any amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents signed by Borrower shall be binding on all other Loan Parties even if such other Loan Parties do not provide their signature. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI a Loan Party in any case shall entitle any Borrower or FSI Loan Party to any other or further notice or demand in similar or other circumstances. Any amendment, Third Amended and Restated Loan and Security Agreement – Xxxxxx.xx Inc. (January 2024) 43 modification, waiver or consent effected in accordance with this Section 11.6 13.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent Lender, on Borrower, and on FSILoan Parties.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. The Loan Parties, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Lxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'the Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunderSubject to clauses (d), (de), (f) any postponement and (g) of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any 14.4, except as otherwise expressly set forth herein any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite the Required Lenders, Borrower, Agent and any other Loan Party party to the Loan Document being amended, provided however, that Borrower may amend the Disclosure Letter without the consent of the Required Lenders only as provided in Article 5; provided, however, that no such amendment, modification, discharge or waiver, unless in writing and signed by all the Supermajority Lenders, do any of the following:
(i) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of interest (other than the waiver of interest at the Default Rate), fees, premiums or other amounts (other than principal) due to the Lenders (or any of them) hereunder or under any other Loan Document; and
(ii) subordinate the Lien securing the Term Loans to any other Lien securing any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be secured by a Lien that is senior to the Lien securing the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions.
(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (iv)(a)(x), (iv)(a)(y) and (iv)(b),each Bank Product Provider holding Secured Obligations directly and adversely affected thereby at such time) directly and adversely affected thereby shall do any of the following:
(i) increase or extend the Term Loan Commitment of such Lender;
(ii) extend of the date scheduled for the payment of anyp rincipal, interest or fees;
(iii) reduce the principal amount of any Term Loan, rate of interest or fees payable;
(a) change the pro rata treatment of (x) any payments (including voluntary and mandatory prepayments), (y) proceeds of Collateral or (z) reductions in Term Loan Commitments and (b) amend the definition of Pro Rata Percentage;
(v) amend Section 14.4(c) or this Section 14.4(d), the definition of Required Lenders, the definition of Supermajority Lenders, or any provision providing for consent or other action by all Lenders;
(vi) discharge all or substantially all of the guarantees of the Loan Parties under the Loan Documents or release all or substantially all of the Collateral, in each case except as otherwise may be provided in this Agreement or the other Loan Documents; and
(vii) subordinate the Term Loans to any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be senior in right of payment to the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 14.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent LenderBorrower.
(e) This Agreement may be amended with the written consent of Agent, on Borrowerthe Borrower and the Required Lenders to (i) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (ii) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(f) Notwithstanding anything to the contrary contained in this Section 14.4 (i) Agent may amend Schedules to reflect assignments or participations entered into pursuant to Section 14.1 and (iii) Agent (at the direction of Required Lenders) and the Borrower may amend or modify this Agreement and any other Loan Document to (1) cure any ambiguity, omission, defect or inconsistency therein, (2) grant a new Lien for the benefit of the Lenders, extend an existing Lien over additional property for the benefit of the Lenders or join additional Persons as Loan Parties, and on FSI(3) 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 this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(g) The Warrant Agreement, the Additional Warrant Agreement, the 2023 Warrant Agreement, the Registration Rights Agreement, the 2023 Registration Rights Agreement, any fee letter, side letter, any Control Agreement, any mortgage or similar agreement or any landlord, bailee or mortgagee agreement may be amended as provided therein and if not provided therein, by each of the parties thereto. Only the consent of the parties to any Bank Product Agreement relating to a Bank Product shall be required for any modification of such Bank Product Agreement.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowersbetween Borrower, Agent, and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSIAgent, and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent, or any Lender. Borrower, Agent and Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower's, FSI's any LenderAgent's or Agentsuch Lender's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Agent and Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.or
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. The Loan Parties, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Lxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'the Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunderSubject to clauses (d), (de), (f) any postponement and (g) of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any 14.4, except as otherwise expressly set forth herein any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite the Required Lenders. Any waiver or , Borrower, Agent and any other Loan Party party to the Loan Document being amended, provided however, that Borrower may amend the Disclosure Letter without the consent with respect to any provision of the Loan Documents shall be effective Required Lenders only as provided in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any Article 5; provided, however, that no such amendment, modification, waiver discharge or consent effected waiver, unless in accordance writing and signed by the Supermajority Lenders, do any of the following:
(i) postpone, delay, defer or extend the schedule payment of the September 30 Payment; and
(ii) subordinate any Term Loan tranche after the Seventh Amendment Effective Date solely with this respect to proceeds of Permitted Equity Issuances as provided in Section 11.6 shall be binding upon 2.6(c)(ii).
(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (ivd)(iii)(a)(x), (ivd)(iii)(a)(y) and (ivd)(iii)(b) below, each Lender then party hereto Bank Product Provider holding Secured Obligations directly and each subsequent Lenderadversely affected thereby at such time) directly and adversely affected thereby, on Borroweror, in connection with case of any Restructuring and with respect to clauses (ii), (iv), (v), and on FSI.(vi) below only, the Supermajority Lenders, shall do any of the following:
(i) increase or extend the Term Loan Commitment of such Lender;
(ii) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of principal (other than the September 30 Payment which may be effected upon consent of the Supermajority Lenders), interest (other than the waiver of interest at the Default Rate which may be effected upon consent of Required Lenders), fees, premiums or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document;
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among BorrowersBorrower, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, and each Lender the Lenders executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSIBorrower, Lenders or Agent. Borrowers, FSIBorrower, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower's, FSI's any Lender's or Agent's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI Guarantor from, any provision in this Agreement or any of the other Loan Documents relating to (ai) the definition of "Borrowing Base" or "Requisite Lenders," (bii) any increase of the amount of any Commitment, (ciii) any reduction of principal, interest or fees payable hereunder, (div) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (ev) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of the Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, and on Borrower, and on FSI.
Appears in 1 contract
Samples: Warehousing Credit Agreement (PLM International Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes and each of the other Loan Documents dated as of and the date hereofEquity Grant Documents, taken together, constitute and contain the entire agreement among between Borrowers, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof, including that certain term sheet dated September 9, 2022 issued by Structural Capital Investments III, LP to Borrowers (the “Term Sheet”).
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof Borrowers, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Agent or Agentany Lender as a result of such provision having been written by such party. Borrowers, FSI, Lenders Agent and Agent Xxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite Agent, the Required Lenders and Borrowers, provided that:
(i) any amendment to the unfunded Commitment or any decrease in (or forgiveness of) the principal amount of any Advance outstanding or accrued interest thereon shall require the written consent of the Lender whose Commitment or principal amount of any Advance is being amended;
(ii) any extension of the Payment Date for any scheduled payment of principal or interest, or the final scheduled Maturity Date shall require the consent of each Lender holding any portion of such outstanding Advance to which such extension applies;
(iii) any extension of the Commitment Termination Date (other than in accordance with the terms of this Agreement) shall require the consent of each Lender having made such Commitment;
(iv) any reduction in the stated rate of interest payable hereunder, or reduction to the Exit Fee shall require the consent of each Lender to whom such interest or fee is due;
(v) any amendment, waiver or modification that has the effect of eliminating or reducing the voting rights of any Lender under this Section 13.4 shall require the consent of all Lenders;
(vi) any amendment, waiver or modification of the definition of Required Lenders or defined terms used therein, shall require the consent of the Required Lenders;
(vii) any consent to the assignment by any Loan Party of its obligations under the Loan Documents shall require the consent of the Required Lenders;
(viii) any waiver of the pro rata application of payments or proceeds of Collateral or any amendment or modification to provisions specifying the order or manner of application of payments or proceeds shall require the consent of all Lenders;
(ix) except as otherwise expressly provided in Section 12.1(b), any amendment, waiver, modification or action that would have the effect of (i) releasing all or substantially all of the Collateral and/or (ii) subordinating any Advance in right of payment or with respect to priority of Liens upon the Collateral (other than those contemplated under the terms of this Agreement) shall require the consent of all Lenders;
(x) any waiver that requires the consent of all Lenders in accordance with this Agreement or any other Loan Document shall be effective only with the consent of all Lenders; and
(xi) any amendment or modification under this Agreement or any other Loan Document in accordance with clause (c) of the definition of Required ABL Approval Matter shall not require the consent of Agent or the Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI Borrowers in any case shall entitle any Borrower or FSI Borrowers to any other or further notice or demand in similar or other Loan and Security Agreement – Grove Collaborative, Inc. 52 circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 13.4 shall be binding upon each Lender then party hereto and each subsequent LenderAgent, on Borrower, Lenders and on FSIBorrowers.
Appears in 1 contract
Samples: Loan and Security Agreement (Grove Collaborative Holdings, Inc.)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among BorrowersBorrower, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof. Borrower acknowledges that it is not relying on any representation or agreement made by any Lender or Agent or any employee, attorney or agent thereof, other than the specific agreements set forth in this Agreement and the Loan Documents.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender Lenders executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent or Lenders. Borrower, Agent and Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower's, FSIAgent's or any Lender's or Agent's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of each Agent and Requisite Lenders. Notwithstanding the foregoing, in all cases, any material change of maturity dates, any interest rate reduction, or any release of any Collateral or any guarantor, or any forbearances or waiver of rights under the Loan Documents shall require the written consent of each Lender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.4 shall be binding upon Agent, each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes and each of the other Loan Documents dated as of and the date hereofWarrant, taken together, constitute and contain the entire agreement among Borrowersbetween Borrower, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof, including the Original LSA, and that certain senior debt sheet dated August 25, 2022 issued by SCI and SQN to Borrower and that certain Mutual Non-Disclosure Agreement dated as of September 8, 2021 by and between Bxxxxxxx and Txxx X. Xxxxxx-Xxxxxxx.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent or any Lender as a result of such provision having been written by such party. Borrower, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Lxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower’s, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersAgent, the Required Lenders and Borrower, provided however, that any amendment to the Commitment or any decrease in the principal amount of any Advance shall also require the written consent of the Lender whose Commitment or principal amount of any Advance is being amended and, provided, further, that Borrower may amend the Perfection Certificate and the Disclosure Schedules without the consent of the Agent or the Required Lenders only as provided in Article 5. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 13.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent Lender, on Borrower, all Loan Parties.
(d) The recitals set forth at the beginning of this Agreement are incorporated into and on FSImade part of this Agreement as though fully set forth herein.
Appears in 1 contract
Samples: Loan and Security Agreement (Tempo Automation Holdings, Inc.)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. The Loan Parties, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Lxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'the Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunderSubject to clauses (d), (de), (f) any postponement and (g) of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any 14.4, except as otherwise expressly set forth herein any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite the Required Lenders, Borrower, Agent and any other Loan Party party to the Loan Document being amended, provided however, that Borrower may amend the Disclosure Letter without the consent of the Required Lenders only as provided in Article 5; provided, however, that no such amendment, modification, discharge or waiver, unless in writing and signed by all the Supermajority Lenders, do any of the following:
(i) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of interest (other than the waiver of interest at the Default Rate), fees, premiums or other amounts (other than principal) due to the Lenders (or any of them) hereunder or under any other Loan Document; and
(ii) subordinate the Lien securing the Term Loans to any other Lien securing any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be secured by a Lien that is senior to the Lien securing the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions.
(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (iv)(a)(x), (iv)(a)(y) and (iv)(b), each Bank Product Provider holding Secured Obligations directly and adversely affected thereby at such time) directly and adversely affected thereby shall do any of the following:
(i) increase or extend the Term Loan Commitment of such Lender;
(ii) extend of the date scheduled for the payment of any principal, interest or fees;
(iii) reduce the principal amount of any Term Loan, rate of interest or fees payable;
(a) change the pro rata treatment of (x) any payments (including voluntary and mandatory prepayments), (y) proceeds of Collateral or (z) reductions in Term Loan Commitments and (b) amend the definition of Pro Rata Percentage;
(v) amend Section 14.4(c) or this Section 14.4(d), the definition of Required Lenders, the definition of Supermajority Lenders, or any provision providing for consent or other action by all Lenders;
(vi) discharge all or substantially all of the guarantees of the Loan Parties under the Loan Documents or release all or substantially all of the Collateral, in each case except as otherwise may be provided in this Agreement or the other Loan Documents; and
(vii) subordinate the Term Loans to any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be senior in right of payment to the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 14.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent LenderBorrower.
(e) This Agreement may be amended with the written consent of Agent, on Borrowerthe Borrower and the Required Lenders to (i) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (ii) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(f) Notwithstanding anything to the contrary contained in this Section 14.4 (i) Agent may amend Schedules to reflect assignments or participations entered into pursuant to Section 14.1 and (iii) Agent (at the direction of Required Lenders) and the Borrower may amend or modify this Agreement and any other Loan Document to (1) cure any ambiguity, omission, defect or inconsistency therein, (2) grant a new Lien for the benefit of the Lenders, extend an existing Lien over additional property for the benefit of the Lenders or join additional Persons as Loan Parties, and on FSI(3) 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 this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(g) The Warrant Agreement, the Additional Warrant Agreement, the Registration Rights Agreement, any fee letter, side letter, any Control Agreement, any mortgage or similar agreement or any landlord, bailee or mortgagee agreement may be amended as provided therein and if not provided therein, by each of the parties thereto. Only the consent of the parties to any Bank Product Agreement relating to a Bank Product shall be required for any modification of such Bank Product Agreement.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Note, the Intercreditor Agreement and each of the other Loan Transaction Documents dated as of the date hereof, . taken together, constitute and contain the entire agreement among BorrowersNAFI, Lenders Borrower and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSINAFI, and each the Lender executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSINAFI or Lender. Borrower, Lenders or Agent. Borrowers, FSI, Lenders NAFI and Agent Lender agree that they intend the literal words of this Agreement and the other Loan Transaction Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any LenderBorrower's or AgentLender's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Transaction Documents shall not be effective without the written consent of Requisite Lendersunless set forth in a writing signed by Borrower and Lender. Any waiver or consent with respect to any provision of the Loan Transaction Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI NAFI in any case shall entitle any Borrower or FSI NAFI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (National Auto Finance Co Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. The Loan Parties, Agent and Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'the Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 (c) [reserved]
(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (d)(iii)(a)(x), (d)(iii)(a)(y) and (d)(iii)(b) below, each Bank Product Provider holding Secured Obligations directly and adversely affected thereby at such time) directly and adversely affected thereby, or, in connection with the case of any Restructuring and with respect to clauses (ii), (iv), (v), and (vi) below only, the Supermajority Lenders, shall do any of the following:
(i) increase or extend the Term Loan Commitment of such Lender;
(ii) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of principal, interest (other than the waiver of interest at the Default Rate which may be effected upon consent of Required Lenders), fees, premiums or consent other amounts due to the Lenders (or any departure of them) hereunder or under any other Loan Document; provided that any extension of the Maturity Date in accordance with the definition thereof shall not constitute a postponement or delay hereunder;
(a) change the pro rata treatment of any Lender with respect to (x) any payments (including voluntary and mandatory prepayments), (y) proceeds of Collateral or (z) reductions in Term Loan Commitments and (b) amend the definition of Pro Rata Percentage (it being understood by the Parties that participation by any Borrower Lender in a new financing by the Loan Parties offered to the Lenders in compliance with Section 6.25 providing rights under any debt instrument with respect to payment and collateral senior to the Term Loans in and of itself shall not constitute a change in the pro rata treatment of any Lender so long as such terms of any senior terms apply on an equal and ratable basis to the rights of Lenders with respect to, and the terms of the Term Loans outstanding, under this Agreement as of the Closing Date);
(iv) discharge all or FSI fromsubstantially all of the guarantees of the Loan Parties under the Loan Documents or release all or substantially all of the Collateral, any provision in each case except as otherwise may be provided in this Agreement or any of the other Loan Documents relating Documents; and
(v) subordinate the Lien securing the Term Loans to any other Lien securing any material other Indebtedness for borrowed money except in the case of (a1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be secured by a Lien that is senior to the Lien securing the Term Loans or (2) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) if proposed by any Lender or any Affiliate thereof is offered ratably to all Lenders on the same terms and conditions;
(vi) subordinate the Term Loans to any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be senior in right of payment to the Term Loans or (2) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) if proposed by any Lender or any Affiliate thereof is offered ratably to all Lenders on the same terms and conditions; and
(vii) amend this Section 14.4(d), the definition of "Borrowing Base" Required Lenders, the definition of Supermajority Lenders, or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest provision providing for consent or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of other action by all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among BorrowersBorrower, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, and each Lender the Lenders executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSIBorrower, Lenders or Agent. Borrowers, FSIBorrower, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower's, FSI's any Lender's or Agent's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (ai) the definition of "Borrowing Base" or "Requisite Lenders," (bii) any increase of the amount of any Commitment, (ciii) any reduction of principal, interest or fees payable hereunder, (div) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (ev) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of the Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, and on Borrower, and on FSI.
Appears in 1 contract
Samples: Warehousing Credit Agreement (PLM International Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween Borrower, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof, including the Commitment Letter and/or any correspondence related to any terms and conditions of such Commitment Letter.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent or any Lender as a result of such provision having been written by such party. Borrower, Agent and Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower’s, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite Agent, the Required Lenders and Borrowers, provided however, that:
(i) any amendment to the unfunded Commitment or any decrease in (or forgiveness of) the principal amount of any Advance outstanding or accrued interest thereon shall require the written consent of the Lender whose Commitment or principal amount of any Advance is being amended;
(ii) any extension of the Payment Date for any scheduled payment of principal or interest, or the final scheduled Maturity Date shall require the consent of each Lender holding any portion of such outstanding Advance to which such extension applies;
(iii) any extension of the Commitment Termination Date (other than in accordance with the terms of this Agreement) shall require the consent of each Lender having made such Commitment;
(iv) any reduction in the stated rate of interest payable hereunder, or reduction to the Non-Utilization Fee or the Final Payment Fee shall require the consent of each Lender to whom such interest or fee is due;
(v) any amendment, waiver of modification that has the effect of eliminating or reducing the voting rights of any Lender under this Section 13.4 shall require the consent of all Lenders. ;
(vi) any amendment, waiver of modification of the definition of Required Lenders or defined terms used therein, shall require the consent of the Required Lenders;
(vii) any consent to the assignment by any Loan Party of its obligations under the Loan Documents shall require the consent of the Required Lenders;
(viii) any waiver of the pro rata application of payments or proceeds of Collateral or any amendment or modification to provisions specifying the order or manner of application of payments or proceeds shall require the consent of all Lenders; and
(ix) any waiver that requires the consent of all Lenders in accordance with this Agreement or any other Loan Document shall be effective only with the consent of all Lenders.
(d) Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI Borrowers in any case shall entitle any Borrower or FSI Borrowers to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 13.4 shall be binding upon each Lender then party hereto and each subsequent LenderAgent, on Borrower, Lenders and on FSI.Borrowers
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes and each of the other Loan Documents dated as of and the date hereofWarrants, taken together, constitute and contain the entire agreement among Borrowersbetween Borrower, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof, including that certain term sheet dated September 17, 2021 issued by SCI to Borrower.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent or any Lender as a result of such provision having been written by such party. Borrower, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Xxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower’s, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersAgent, the Required Lenders and Borrower, provided however, that any amendment to the Commitment or any decrease in the principal amount of any Advance shall also require the written consent of the Lender whose Commitment or principal amount of any Advance is being amended and, provided, further, that Borrower may amend the Perfection Certificate and the Disclosure Schedules without the consent of the Agent or the Required Lenders only as provided in Article 5. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 13.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent Lender, on Borrower, and on FSI.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. The Loan Parties, Agent and Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'the Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunderSubject to clauses (d), (de), (f) any postponement and (g) of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any 14.4, except as otherwise expressly set forth herein any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite the Required Lenders, Borrower, Agent and any other Loan Party party to the Loan Document being amended, provided however, that Borrower may amend the Disclosure Letter without the consent of the Required Lenders only as provided in Article 5; provided, however, that no such amendment, modification, discharge or waiver, unless in writing and signed by all the Supermajority Lenders, do any of the following:
(i) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of interest (other than the waiver of interest at the Default Rate), fees, premiums or other amounts (other than principal) due to the Lenders (or any of them) hereunder or under any other Loan Document; and
(ii) subordinate the Lien securing the Term Loans to any other Lien securing any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be secured by a Lien that is senior to the Lien securing the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions.
(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (iv)(a)(x), (iv)(a)(y) and (iv)(b), each Bank Product Provider holding Secured Obligations directly and adversely affected thereby at such time) directly and adversely affected thereby shall do any of the following:
(i) increase or extend the Term Loan Commitment of such Lender;
(ii) extend of the date scheduled for the payment of any principal, interest or fees;
(iii) reduce the principal amount of any Term Loan, rate of interest or fees payable;
(a) change the pro rata treatment of (x) any payments (including voluntary and mandatory prepayments), (y) proceeds of Collateral or (z) reductions in Term Loan Commitments and (b) amend the definition of Pro Rata Percentage;
(v) amend Section 14.4(c) or this Section 14.4(d), the definition of Required Lenders, the definition of Supermajority Lenders, or any provision providing for consent or other action by all Lenders;
(vi) discharge all or substantially all of the guarantees of the Loan Parties under the Loan Documents or release all or substantially all of the Collateral, in each case except as otherwise may be provided in this Agreement or the other Loan Documents; and
(vii) subordinate the Term Loans to any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be senior in right of payment to the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 14.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent LenderBorrower.
(e) This Agreement may be amended with the written consent of Agent, on Borrowerthe Borrower and the Required Lenders to (i) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (ii) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(f) Notwithstanding anything to the contrary contained in this Section 14.4 (i) Agent may amend Schedules to reflect assignments or participations entered into pursuant to Section 14.1 and (iii) Agent (at the direction of Required Lenders) and the Borrower may amend or modify this Agreement and any other Loan Document to (1) cure any ambiguity, omission, defect or inconsistency therein, (2) grant a new Lien for the benefit of the Lenders, extend an existing Lien over additional property for the benefit of the Lenders or join additional Persons as Loan Parties, and on FSI(3) 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 this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(g) The Warrant Agreement, the Registration Rights Agreement, any fee letter, side letter, any Control Agreement, any mortgage or similar agreement or any landlord, bailee or mortgagee agreement may be amended as provided therein and if not provided therein, by each of the parties thereto. The Warrant Agreement, the Warrants and the Registration Rights Agreement may be amended as provided in the Warrant Agreement or the Registration Rights Agreements, as applicable. Only the consent of the parties to any Bank Product Agreement relating to a Bank Product shall be required for any modification of such Bank Product Agreement.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes and each of the other Loan Documents dated as Documents, the Closing Date Warrant and the Committed Incremental Warrant (for the avoidance of doubt, together with the date hereofStructural Intercreditor Agreement), taken together, constitute and contain the entire agreement among Borrowersbetween Borrower, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent or any Lender as a result of such provision having been written by such party. Borrower, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Xxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol parole evidence shall be necessary or appropriate to establish Borrowers'Borrower’s, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunderSubject to clauses (d), (de), (f) any postponement and (g) of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any 13.4, except as otherwise expressly set forth herein any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite Agent, the Required Lenders (or by Agent with the consent of the Required Lenders) and Borrower, provided however, that Borrower may amend the Disclosure Letter without the consent of Agent or the Required Lenders only as provided in Article 5; provided, however, that no such amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders directly and adversely affected thereby (or by Agent with the consent of all the Lenders directly and adversely affected thereby), in addition to the Required Lenders (or by Agent with the consent of the Required Lenders) and the Borrower, do any of the following:
(i) increase or extend the Commitment of such Lender;
(ii) postpone or delay any date fixed for, or reduce or waive, any scheduled installment of principal or any payment of interest, fees, premiums or other amounts (other than principal) due to the Lenders (or any of them) hereunder or under any other Loan Document (for the avoidance of doubt, mandatory prepayments pursuant to Section 2.6(a) and 2.6(b) may be postponed, delayed, reduced, waived or modified with the consent of the Required Lenders);
(iii) change the priority or pro rata treatment of any payments (including voluntary and mandatory prepayments), Liens, proceeds of Collateral or reductions in Commitments (including as a result in whole or in part of allowing the issuance or incurrence, pursuant to this Agreement or otherwise, of new loans or other Indebtedness having any priority over any of the Obligations in respect of payments, Liens, Collateral or proceeds of Collateral, in exchange for any Obligations or otherwise);
(iv) amend this Section 13.4(c) or, subject to the terms of this Agreement, the definition of Required Lenders, the definition of Pro Rata Percentage or any provision providing for consent or other action by all Lenders;
(v) any amendment or modification that disproportionately affects any Lender as compared to any similarly situated Lender; and
(vi) discharge all or substantially all of the guarantees of the Loan Parties under the Loan Documents or release all or substantially all of the Collateral, in each case except as otherwise may be provided in this Agreement or the other Loan Documents; it being agreed that (X) all Lenders shall be deemed to be directly and adversely affected by an amendment, waiver or supplement described in the preceding clauses (iii), (iv) or (vi) and (Y) notwithstanding the preceding clause (X), only those Lenders that have not been provided a reasonable opportunity, as determined in the good faith judgment of Agent, to receive the most-favorable treatment under or in connection with the applicable amendment, waiver or supplement described in the preceding clause (ii) that is provided to any other Person, including the opportunity to participate on a pro rata basis on the same terms in any new loans or other Indebtedness permitted to be issued as a result of such amendment, waiver or supplement, shall be deemed to be directly and adversely affected by such amendment, waiver or supplement. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 13.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent Lender, on Borrower.
(d) This Agreement may be amended with the written consent of Agent, the Borrower and on FSIthe Required Lenders to (i) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (ii) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) Notwithstanding anything to the contrary contained in this Section 13.4 Agent (at the direction of Required Lenders) and the Borrower may amend or modify this Agreement and any other Loan Document to (1) cure any ambiguity, omission, defect or inconsistency therein and (2) grant a new Lien for the benefit of the Lenders, extend an existing Lien over additional property for the benefit of the Lenders or join additional Persons as Loan Parties.
(f) Any fee letter, side letter, any Control Agreement, any mortgage or similar agreement or any landlord, bailee or mortgagee agreement may be amended as provided therein and if not provided therein, by each of the parties thereto.
(g) Notwithstanding anything to the contrary set forth herein, this Agreement may be amended at the request of the Borrower (in its sole discretion), without the consent of the Lenders or the Agent, to add one or more additional events of default, financial covenants and/or negative covenants included in any Permitted Convertible Debt.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes Note and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among BorrowersBorrower, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, and each Lender the Lenders executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSIBorrower, Lenders or Agent. Borrowers, FSIBorrower, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower's, FSI's any Lender's or Agent's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (ai) the definition of "Borrowing Base" or "Requisite Lenders," (bii) any increase of the amount of any Commitment, (ciii) any reduction of principal, interest or fees payable hereunder, (div) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (ev) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of the Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.consent
Appears in 1 contract
Samples: Warehousing Credit Agreement (PLM International Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents including any supplemental loan documents dated as of the date hereof, taken together, constitute and contain the entire agreement among BorrowersBorrower, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof. Borrower acknowledges that it is not relying on any representation or agreement made by any Lender or Agent or any employee, attorney or agent thereof, other than the specific agreements set forth in this Agreement and the Loan Documents.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender Lenders executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against BorrowersBorrower, FSIAgent or Lenders. Borrower, Agent and Lenders or Agent. Borrowers, FSI, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower’s, FSI's Agent’s or any Lender's or Agent's ’s actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite each Agent and Lenders. Notwithstanding the foregoing, in all cases, any material change of maturity dates, any interest rate reduction, or any release of any Collateral or any guarantor, or any forbearances or waiver of rights under the Loan Documents shall require the written consent of each Lender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.4 shall be binding upon Agent, each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Intarcia Therapeutics, Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 This Agreement, the Notes Note and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among BorrowersBorrower, Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 This Agreement is the result of negotiations between and has been reviewed by each of Borrower, FSI, and each Lender the Lenders executing this Agreement as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSIBorrower, Lenders or Agent. Borrowers, FSIBorrower, Lenders and Agent agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'Borrower's, FSI's any Lender's or Agent's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (ai) the definition of "Borrowing Base" or "Requisite Lenders," (bii) any increase of the amount of any Commitment, (ciii) any reduction of principal, interest or fees payable hereunder, (div) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (ev) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of the Requisite Lenders. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 shall be binding upon each Lender then party hereto and each subsequent Lender, and on Borrower, and on FSI.
Appears in 1 contract
Samples: Warehousing Credit Agreement (PLM International Inc)
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereofDocuments, taken together, constitute and contain the entire agreement among Borrowersbetween the Loan Parties, Agent and Lenders and Agent and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrowerof the Loan Parties, FSI, Agent and each Lender executing this Agreement Lenders as of the Closing Date and Agent and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowersany Loan Party, FSIAgent or any Lender as a result of such provision having been written by such party. The Loan Parties, Lenders or Agent. Borrowers, FSI, Lenders Agent and Agent Lxxxxxx agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers'the Loan Parties’, FSI's any Lender's Agent’s or Agent's Lenders’ actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunderSubject to clauses (d), (de), (f) any postponement and (g) of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any 14.4, except as otherwise expressly set forth herein any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite the Required Lenders, Borrower, Agent and any other Loan Party party to the Loan Document being amended, provided however, that Borrower may amend the Disclosure Letter without the consent of the Required Lenders only as provided in Article 5; provided, however, that no such amendment, modification, discharge or waiver, unless in writing and signed by all the Supermajority Lenders, do any of the following:
(i) postpone or delay any date fixed for, or reduce, waive, defer, forgive or extend any scheduled payment of interest (other than the waiver of interest at the Default Rate), fees, premiums or other amounts (other than principal) due to the Lenders (or any of them) hereunder or under any other Loan Document; and
(ii) subordinate the Lien securing the Term Loans to any other Lien securing any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be secured by a Lien that is senior to the Lien securing the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions.
(d) No amendment, modification, discharge or waiver, unless in writing and signed by all the Lenders (and in the case of clauses (iv)(a)(x), (iv)(a)(y) and (iv)(b) below, each Bank Product Provider holding Secured Obligations directly and adversely affected thereby at such time) directly and adversely affected thereby shall do any of the following:
(i) increase or extend the Term Loan Commitment of such Lender;
(ii) extend of the date scheduled for the payment of any principal, interest or fees;
(iii) reduce the principal amount of any Term Loan, rate of interest or fees payable;
(a) change the pro rata treatment of (x) any payments (including voluntary and mandatory prepayments), (y) proceeds of Collateral or (z) reductions in Term Loan Commitments and (b) amend the definition of Pro Rata Percentage;
(v) amend Section 14.4(c) or this Section 14.4(d), the definition of Required Lenders, the definition of Supermajority Lenders, or any provision providing for consent or other action by all Lenders;
(vi) discharge all or substantially all of the guarantees of the Loan Parties under the Loan Documents or release all or substantially all of the Collateral, in each case except as otherwise may be provided in this Agreement or the other Loan Documents; and
(vii) subordinate the Term Loans to any material other Indebtedness for borrowed money except in the case of (1) any Indebtedness that is expressly permitted by this Agreement as in effect on the Closing Date to be senior in right of payment to the Term Loans, (2) any “debtor-in-possession” facility or (3) any other Indebtedness so long as such Indebtedness (and any fees offered in connection therewith) is offered ratably to all Lenders on the same terms and conditions. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 14.4 shall be binding upon each Lender then party hereto Agent, Lenders and each subsequent LenderBorrower.
(e) This Agreement may be amended with the written consent of Agent, on Borrowerthe Borrower and the Required Lenders to (i) add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the outstanding principal and accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and (ii) include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(f) Notwithstanding anything to the contrary contained in this Section 14.4 (i) Agent may amend Schedules to reflect assignments or participations entered into pursuant to Section 14.1 and (iii) Agent (at the direction of Required Lenders) and the Borrower may amend or modify this Agreement and any other Loan Document to (1) cure any ambiguity, omission, defect or inconsistency therein, (2) grant a new Lien for the benefit of the Lenders, extend an existing Lien over additional property for the benefit of the Lenders or join additional Persons as Loan Parties, and on FSI(3) 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 this Agreement and the other Loan Documents with the Term Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(g) The Warrant Agreement, the Additional Warrant Agreement, the 2023 Warrant Agreement, the 2024 Warrant Agreement, the Registration Rights Agreement, the 2023 Registration Rights Agreement, the 2024 Registration Rights Agreement, any fee letter, side letter, any Control Agreement, any mortgage or similar agreement or any landlord, bailee or mortgagee agreement may be amended as provided therein and if not provided therein, by each of the parties thereto. Only the consent of the parties to any Bank Product Agreement relating to a Bank Product shall be required for any modification of such Bank Product Agreement.
Appears in 1 contract
Entire Agreement Construction Amendments and Waivers. 11.6.1 (a) This Agreement, the Notes Agreement and each of the other Loan Documents dated as of the date hereof, taken together, constitute and contain the entire agreement among Borrowers, Lenders between Borrower and Agent Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof. Borrower acknowledges that it is not relying on any representation or agreement made by Lender or any employee, attorney or agent thereof, other than the specific agreements set forth in this Agreement and the Loan Documents.
11.6.2 (b) This Agreement is the result of negotiations between and has been reviewed by each Borrower, FSI, of Borrower and each Lender executing this Agreement as of the Closing Date and Agent date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against Borrowers, FSI, Lenders Borrower or AgentLender. Borrowers, FSI, Lenders Borrower and Agent Lender agree that they intend the literal words of this Agreement and the other Loan Documents and that no parol evidence shall be necessary or appropriate to establish Borrowers', FSI's any LenderBorrower's or AgentLender's actual intentions.
11.6.3 No amendment, modification, discharge or waiver of or consent to any departure by any Borrower or FSI from, any provision in this Agreement or any of the other Loan Documents relating to (a) the definition of "Borrowing Base" or "Requisite Lenders," (b) any increase of the amount of any Commitment, (c) any reduction of principal, interest or fees payable hereunder, (d) any postponement of any date fixed for any payment or prepayment of principal or interest hereunder or (e) this Section 11.6.3 shall be effective without the written consent of all Lenders. Any and all other amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement or of any of the other Loan Documents shall not be effective without the written consent of Requisite LendersLender. Any waiver or consent with respect to any provision of the Loan Documents shall be effective only in the specific instance and for the specific purpose for which it was given. No notice to or demand on any Borrower or FSI in any case shall entitle any Borrower or FSI to any other or further notice or demand in similar or other circumstances. Any amendment, modification, waiver or consent effected in accordance with this Section 11.6 12.4 shall be binding upon each Lender then party hereto and each subsequent Lender, on Borrower, and on FSI.
Appears in 1 contract
Samples: Equipment Loan and Security Agreement (Nuvasive Inc)
