Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Agent’s and the applicable Note Purchasers’ respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor acknowledges that it has been advised by counsel in connection with the execution of the Note Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement. (b) The Collateral Agent, the Required Note Purchasers and the Obligors may, subject to the provisions of this Section 14.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by Obligors, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights or interests of the Collateral Agent, the Note Purchasers or Obligors thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note Purchasers: (i) increase the maximum dollar amount of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected thereby; (ii) extend the Term or the time for payment of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate); (iii) increase the Commitment of any Note Purchaser without the consent of each Note Purchaser directly affected thereby; (iv) alter, amend or modify the provisions of Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and (v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or (vi) release any Obligor (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents in any way. (c) Any such supplemental agreement shall be binding upon the Obligors and the Note Purchasers and all future holders of the Obligations. (d) The Collateral Agent or the Note Purchasers may, at any time in the Note Purchasers’ sole discretion, regardless of (i) the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances shall be deemed to be Notes made by and owing to the Note Purchasers and shall constitute Obligations.
Appears in 2 contracts
Samples: Note Purchase and Guaranty Agreement (Next.e.GO B.V.), Note Purchase and Guaranty Agreement (Athena Consumer Acquisition Corp.)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto Loan Parties, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Loan Party’s, Agent’s and the applicable Note Purchasers’ each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Loan Documents executed by Obligorsthe Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors any Loan Party thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, :
(A) without the written consent of all Note Purchaserseach Lender affected thereby:
(i) increase the maximum dollar amount Commitment Percentage or the Commitment of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend increase the Term or Maximum Revolving Advance Amount (except, for the time avoidance of doubt, for payment any increase to the Maximum Revolving Advance Amount resulting from, and in accordance with, the provisions of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default RateSection 2.4);
(iii) increase extend the Commitment maturity of any Note Purchaser without or the consent due date for any amount payable hereunder, or decrease the rate of each Note Purchaser directly affected therebyinterest or reduce any scheduled principal payment, fee or any other amount payable by any Loan Party to Lenders pursuant to this Agreement (it being understood that a waiver of any Default, Event of Default or mandatory prepayment shall not constitute a reduction of the rate of interest or reduction of any principal payment, fee or other amount payable by any Loan Party);
(iv) alter the definition of the term Required Lenders or alter, amend or modify or waive any provision of this Section 15.2(b), including, without limitation, eliminating or reducing the provisions voting rights of the Lenders under this Section 15.2(b);
(v) other than in connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan Documents, release any Borrower from any obligation for the payment of money or consent to the assignment or transfer by any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan Documents;
(vi) release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their obligations under the applicable Guaranty executed by such Guarantor;
(vii) amend, modify or waive the pro rata requirements of Section 11.6 2.13 or Section 11.2 or any type other provision of payment priority the Loan Documents requiring pro rata treatment of the Lenders; or
(viii) [reserved]; or
(B) without the consent of Agent, alter, amend, modify or similar payment waterfall waive the rights or duties of Agent;
(C) without the consent of the Note PurchasersIssuer, alter, amend, modify or waive the rights or duties of such Issuer; and
(vD) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release any Obligor (other than in accordance with Swingline Lender, alter, amend, modify or waive the provisions rights or duties of this Agreement) the Swingline Lender or subordinate increase the Obligations under the Note Documents in any way.
(c) Maximum Swingline Loan Amount. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors each Loan Party, Lenders and the Note Purchasers Agent and all future holders of the Obligations.
(d) The Collateral . In the case of any waiver, the Loan Parties, Agent or the Note Purchasers mayand Lenders shall be restored to their former positions and rights, at and any time in the Note Purchasers’ sole discretion, regardless of (i) the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances Default waived shall be deemed to be Notes made by cured and owing not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event a Lender is a Non-Consenting Lender, then Borrower may, at its option, require such Lender to assign its Commitment Percentage of the Advances to HSBC (with HSBC’s consent) or to another Lender (with such Lender’s consent) or to any other Person that shall assume such obligations (the “Designated Lender”), for a price equal to the Note Purchasers then outstanding principal amount thereof plus accrued and unpaid interest and fees and all other Obligations due such Lender under this Agreement and the other Loan Documents, which interest and fees shall constitute Obligationsbe paid in full at the time of such assignment. In the event Borrower elects to require any Lender to assign its interest to HSBC or to the Designated Lender, Borrower will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to HSBC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, HSBC or the Designated Lender, as appropriate, and Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Veeco Instruments Inc), Loan and Security Agreement (Marketwise, Inc.)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto each Loan Party, Agent and each Lender and Term Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by Loan Parties’, Agent’s, each ObligorLender’s and the Collateral AgentTerm Lender’s and the applicable Note Purchasers’ respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by ObligorsLoan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note PurchasersLenders:
(i) increase the maximum dollar amount Commitment Percentage of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) increase the Inventory Advance Cap or the Maximum Loan Amount;
(iii) extend the Term or the time for payment of principal or interest of any Notes (excluding the due date of for any mandatory prepayment of the Notes)amount payable hereunder, or any fee payable to any Note Purchaser, or reduce the principal amount of or decrease the rate of interest borne by any Note or reduce any scheduled principal payment or fee payable by Loan Parties to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect Lenders pursuant to waive or rescind any imposition of the Default Rate);
(iii) increase the Commitment of any Note Purchaser without the consent of each Note Purchaser directly affected therebythis Agreement;
(iv) alter the definition of the term Required Lenders or alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and16.2(b);
(v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release during any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents having an aggregate value in any way.excess of $1,000,000;
(cvi) change the rights and duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Revolving Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Revolving Formula Amount; or
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date. and provided, further, that without the consent of Term Lender, neither the Term nor the due date for any amount payable hereunder with respect to the Term Loans may be extended, nor the rate of interest applicable to the Term Loans or the principal amount of the Term Loans may be reduced. Any such supplemental agreement shall apply equally to each Lender and Term Lender and shall be binding upon the Obligors Loan Parties, Lenders, Term Lender and the Note Purchasers Agent and all future holders of the Obligations.
(d) The Collateral . In the case of any waiver, Loan Parties, Agent or the Note Purchasers mayand Lenders and Term Lender shall be restored to their former positions and rights, at and any time in the Note Purchasers’ sole discretion, regardless of (i) the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances Default waived shall be deemed to be Notes made by cured and owing not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such Lender shall not respond or reply to Agent in writing within ten (10) days of delivery of such report, such Lender shall be deemed to have consented to the Note Purchasers matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then HSBC may, at its option, require such Lender to assign its interest in the Advances to HSBC or to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall constitute Obligationsbe paid when collected from Loan Parties. In the event HSBC elects to require any Lender to assign its interest to HSBC or to the Designated Lender, HSBC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to HSBC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, HSBC or the Designated Lender, as appropriate, and Agent.
Appears in 1 contract
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto each Loan Party, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by Loan Parties', Agent's and each Obligor’s and the Collateral Agent’s and the applicable Note Purchasers’ Lender's respective officersofficers as required under Section 17.2(b) hereof. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be chargedwriting complying with Section 17.2(b) hereof. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Borrowers may, subject to the provisions of this Section 14.2(b17.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by ObligorsBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers Loan Parties hereunder or Obligors thereunder or the conditions, provisions or terms hereof or thereof or waiving any Event of Default hereunder or thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note PurchasersLenders:
(i) increase the maximum dollar amount Commitment Percentage of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend increase the Term or the time for payment of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate)Maximum Revolving Advance Amount;
(iii) increase extend the Commitment maturity of any Note Purchaser without or the consent due date for any amount payable hereunder, or decrease the rate of each Note Purchaser directly affected therebyinterest or reduce any scheduled principal payment or fee payable by Borrowers to Lenders pursuant to this Agreement;
(iv) alter the definition of the term Required Lenders or alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and17.2(b);
(v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release during any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents having an aggregate value in any way.excess of $1,000,000;
(cvi) change the rights and duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances, Swingline Loans and Letter of Credit Obligations outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount; or
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; and provided, further, that the Maximum Swingline Loan Amount may not be increased without the consent of the Swingline Lender. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors Loan Parties, Lenders and the Note Purchasers Agent and all future holders of the Obligations. In the case of any waiver, Loan Parties, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event that Agent requests the consent of a Lender pursuant to this Section 17.2 and such Lender shall not respond or reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be deemed to have consented to the matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to this Section 17.2 and such consent is denied, then GMACCF may, at its option, require such Lender to assign its interest in the Advances to GMACCF or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event GMACCF elects to require any Lender to assign its interest to GMACCF or to the Designated Lender, GMACCF will so notify such Lender in writing within forty-five (45) days following such Lender's denial, and such Lender will assign its interest to GMACCF or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, GMACCF or the Designated Lender, as appropriate, and Agent.
(d) The Collateral Notwithstanding the foregoing, Agent or may at its discretion and without the Note Purchasers mayconsent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Loan Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall decrease such excess in as expeditious a manner as is practicable under the Note Purchasers’ sole discretion, regardless of (i) circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances involuntary overadvances shall be deemed to be Notes made by and owing to the Note Purchasers involuntary overadvances and shall constitute Obligationsbe decreased in accordance with the preceding sentence.
Appears in 1 contract
Samples: Loan and Security Agreement (Brown Jordan International Inc)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto Loan Parties, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Loan Party’s, Agent’s and the applicable Note Purchasers’ each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Loan Documents executed by Obligorsthe Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors any Loan Party thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, : (A) without the written consent of all Note Purchasers:
each Lender affected thereby: (i) increase the maximum dollar amount Commitment Percentage or the Commitment of any Lender; (ii) increase the Maximum Revolving Advance Amount (except, for the avoidance of doubt, for any increase to the Maximum Revolving Advance Amount resulting from, and in accordance with, the provisions of Section 2.4); (iii) extend the maturity of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected thereby;
(ii) extend the Term or the time for payment of principal or interest of any Notes (excluding the due date of for any mandatory prepayment of the Notes)amount payable hereunder, or any fee payable to any Note Purchaser, or reduce the principal amount of or decrease the rate of interest borne by any Note or reduce any scheduled principal payment, fee or any other amount payable by any Loan Party to Lenders pursuant to this Agreement (it being understood that a waiver of any Note PurchaserDefault, without the consent Event of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive Default or rescind any imposition mandatory prepayment shall not constitute a reduction of the Default Rate);
(iii) increase the Commitment rate of interest or reduction of any Note Purchaser without the consent of each Note Purchaser directly affected thereby;
principal payment, fee or other amount payable by any Loan Party); (iv) alter the definition of the term Required Lenders or alter, amend or modify or waive any provision of this Section 15.2(b), including, without limitation, eliminating or reducing the provisions of Section 11.6 or any type of payment priority or similar payment waterfall without the consent voting rights of the Note PurchasersLenders under this Section 15.2(b); and
(v) release any Collateral (other than in accordance connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the provisions terms hereof or the other Loan Documents, release any Borrower from any obligation for the payment of money or consent to the assignment or transfer by any Borrower or any Guarantor of any of its rights or duties under this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release any Obligor (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents in any way.
(c) Any such supplemental agreement shall be binding upon the Obligors and the Note Purchasers and all future holders of the Obligations.
(d) The Collateral Agent or the Note Purchasers may, at any time in the Note Purchasers’ sole discretion, regardless of (i) the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances shall be deemed to be Notes made by and owing to the Note Purchasers and shall constitute Obligations.Loan Documents; 111
Appears in 1 contract
Samples: Loan and Security Agreement (Veeco Instruments Inc)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith other Loan Documents contain the entire understanding between each Loan Party, the parties hereto Agent, the Lenders and the Issuer and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Agent’s and the applicable Note Purchasers’ respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, the Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties, may, subject to the provisions of this Section 14.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Loan Documents executed by Obligorsthe Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights or interests of the Collateral AgentLenders, the Note Purchasers Issuer, the Agent or Obligors the Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, the consent of the Issuer must be obtained with respect to any amendment, waiver or consent with respect to Sections 2.8, 2.9 and 2.10 or any other provisions, the amendment or waivers of which would adversely affect the Issuer; provided, further, however, the consent of the Swing Line Lender must be obtained with respect to any amendment, waiver or consent with respect to Sections 2.6 or any other provisions, the amendment or waivers of which would adversely affect the Swing Line Lender; and, provided, further, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note Purchasers:
(i) other than as permitted as set forth in Section 2.11 of this Agreement, increase the maximum dollar amount Revolving Commitment of any Note of any Note Purchaser Lender, without the written consent of each Note Purchaser directly affected therebythe Agent and such Lender;
(ii) extend the Term or the time for payment of principal or interest maturity of any Notes (excluding Note or the due date of for any mandatory prepayment amount payable hereunder without the written consent of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or Agent and each Lender affected thereby;
(iii) decrease the rate of interest borne by any Note or reduce any fee payable by the Loan Parties to any Note Purchaser, the Lenders and/or the Issuer pursuant to this Agreement without the written consent of the Agent and each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate);
(iii) increase the Commitment of any Note Purchaser without the consent of each Note Purchaser directly Lender and/or Issuer affected thereby;
(iv) alter the definition of the term Required Lenders without the consent of the Agent and each Lender;
(v) alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall 16.2(b) without the consent of the Note Purchasers; andAgent and each Lender;
(vvi) release any Collateral during any calendar year (other than in accordance connection with the provisions dispositions of collateral permitted by this Agreement and the Security DocumentsAgreement) having an aggregate value in excess of EUR 2,500,000 One Million Dollars ($1,000,000) without the consent of all Note Purchaserseach Lender; provided, however, that, if an Event of Default has occurred and is continuing, the consent of each Lender shall be required to release any such Collateral;
(vii) change the rights and duties of the Agent without the consent of each Lender;
(viii) increase the advance rates in the definition of Borrowing Base above the advance rates in effect on the Closing Date without the consent of each Lender;
(ix) release any Loan Party from the Obligations under this Agreement, or any Loan Document without the consent of each Lender; or
(vix) release any Obligor (other than in accordance with alter, amend or modify Section 11.6 hereof without the provisions consent of this Agreement) or subordinate the Obligations under the Note Documents in any way.
(c) each Lender. Any such supplemental agreement shall apply equally to each Lender and the Issuer and shall be binding upon the Obligors and Loan Parties, the Note Purchasers Lenders, the Issuer, the Agent and all future holders of the Obligations. In the case of any waiver, the Loan Parties, the Agent, the Lenders and the Issuer shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(d) The Collateral Agent or the Note Purchasers may, at any time in the Note Purchasers’ sole discretion, regardless of (ia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (iic) any other contrary provision of this Agreement, make extensions the Agent may at its discretion and without the consent of credit the Lenders, voluntarily permit the outstanding Revolving Loans and the amount of Letters of Credit outstanding at any time to exceed one hundred five percent (105%) of the Borrowing Base for up to ninety (90) consecutive Business Days provided that such outstanding Advances do not exceed the Aggregate Revolving Commitment. For purposes of the preceding sentence, the discretion granted to the Obligors Agent hereunder shall not preclude involuntary overadvances that they in their reasonable business judgmentmay result from time to time due to the fact that the Borrowing Base was unintentionally exceeded for any reason, deem necessary including, but not limited to, Collateral previously deemed to be either “Eligible Accounts” or desirable (A) “Eligible Coal Inventory”, as applicable, becomes ineligible or collections of Accounts applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve or protect the Collateral, or any portion thereof, . In the event the Agent involuntarily permits the outstanding Advances to exceed the Borrowing Base by more than five percent (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d5%), the Agent shall use its efforts to have the Loan Parties decrease such Protective excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Advances made after the Agent has determined the existence of involuntary overadvances shall be deemed to be Notes made by and owing to the Note Purchasers involuntary overadvances and shall constitute Obligationsbe decreased in accordance with the preceding sentence.
(c) If, following the Closing Date, the Agent and the Borrower Representative shall have agreed in their sole and absolute discretion that there is an ambiguity, inconsistency, manifest error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Agent and the Borrower Representative shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof (it being understood that the Agent has no obligation to agree to any such amendment).
Appears in 1 contract
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto each Loan Party, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s Loan Party's, Agent's and the Collateral Agent’s and the applicable Note Purchasers’ each Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by ObligorsLoan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note PurchasersLenders:
(i) increase the maximum dollar amount Commitment Percentage of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend increase the Term Maximum Loan Amount, the Maximum Revolving Advance Amount, or the time for payment of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate)Maximum Term Loan Amount;
(iii) increase extend the Commitment maturity of any Note Purchaser without or the consent due date for any amount payable hereunder, or decrease the rate of each Note Purchaser directly affected therebyinterest or reduce any scheduled principal payment or fee payable by Borrowers to Lenders pursuant to this Agreement;
(iv) alter the definition of the term Required Lenders or alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and16.2(b);
(v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release during any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents having an aggregate value in any way.excess of $50,000;
(cvi) change the rights and duties of Agent, provided however, any such change shall also require the specific consent of the Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed the Formula Amount by ten (10%) percent; or
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors Loan Parties, Lenders and the Note Purchasers Agent and all future holders of the Obligations. In the case of any waiver, Loan Parties, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such Lender shall not respond or reply to Agent in writing within ten (10) days of delivery of such report, such Lender shall be deemed not to have consented to the matter that was the subject of the request.
(d) The Collateral In the event Agent or involuntarily permits the Note Purchasers mayoutstanding Revolving Advances to exceed the Formula Amount, at any time Agent shall decrease such excess in as expeditious a manner as is practicable under the Note Purchasers’ sole discretion, regardless of (i) circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances involuntary overadvances shall be deemed to be Notes made by involuntary overadvances and owing shall be decreased in accordance with the preceding sentence. Involuntary overadvances shall be overadvances that may result, from time to time, due to the Note Purchasers and shall constitute Obligationsfact that the Formula Amount was unintentionally exceeded for any reason, including but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral.
Appears in 1 contract
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto Borrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by Borrower's, Agent's and each Obligor’s and the Collateral Agent’s and the applicable Note Purchasers’ Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled canceled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Borrower acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Borrower may, subject to the provisions of this Section 14.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or any of the Other Documents executed by ObligorsBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Event of Default thereunder, but only to the extent specified in such written agreements; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note PurchasersLenders:
(i) increase the maximum dollar Commitment Percentage or commitment amount of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend the Term or the time for payment of principal or interest maturity of any Notes (excluding Note or the due date of for any mandatory prepayment of the Notes)amount payable hereunder, or any fee payable to any Note Purchaser, or reduce the principal amount of or decrease the rate of interest borne by any Note or reduce any fee payable by Borrower to any Note Purchaser, without Lenders pursuant to this Agreement or alter the consent amount of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate)repayments;
(iii) increase alter the Commitment definition of any Note Purchaser without the consent of each Note Purchaser directly affected therebyterm Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) alter, amend or modify the provisions of Section 11.6 or release any type of payment priority or similar payment waterfall without the consent material portion of the Note Purchasers; and
(v) release Collateral during any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents in any way.);
(cv) change the rights and duties of Agent;
(vi) increase the Maximum Revolving Amount or permit any Out-of-Formula Loan to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive days or exceed one hundred ten percent (110%) of the Formula Amount; or
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors Borrower, Lenders and the Note Purchasers Agent and all future holders of the Obligations.
(d) The Collateral . In the case of any waiver, Borrower, Agent or the Note Purchasers mayand Lenders shall be restored to their former positions and rights, at and any time in the Note Purchasers’ sole discretion, regardless of (i) the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances Default waived shall be deemed to be Notes made by cured and owing not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such Lender shall not respond or reply to Agent in writing within ten (10) Business Days of delivery of such request, such Lender shall be deemed to have consented to the Note Purchasers matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then PNC may, at its option, require such Lender to assign its interest in the Advances to PNC or to another Lender or to any other Person designated by the Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall constitute Obligationsbe paid when collected from Borrower. In the event PNC elects to require any Lender to assign its interest to PNC or to the Designated Lender, PNC will so notify such Lender in writing within forty-five (45) days following such Lender's denial, and such Lender will assign its interest to PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, PNC or the Designated Lender, as appropriate, and Agent.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Aaf McQuay Inc)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto each Credit Party, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s Credit Party's, Agent's and the Collateral Agent’s and the applicable Note Purchasers’ each Lender's respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Credit Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Credit Parties may, subject to the provisions of this Section 14.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by Obligorseach Credit Party, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors any Credit Party thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the written consent of all Note PurchasersLenders:
(i) increase the maximum dollar amount Commitment Percentage or the Commitment of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend increase the Term or the time for payment of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate)Maximum Revolving Advance Amount;
(iii) increase extend the Commitment maturity of any Note Purchaser without or the consent due date for any amount payable hereunder, or decrease the rate of each Note Purchaser directly affected therebyinterest or reduce any scheduled principal payment, fee or any other amount payable by any Borrower to Lenders pursuant to this Agreement;
(iv) alter the definition of the term Required Lenders or alter, amend or modify the provisions or waive any provision of this Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and15.2(b);
(v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release during any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents having an aggregate value in any way.excess of $250,000;
(cvi) alter, amend, modify or waive the rights or duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount; or
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date, or alter, amend or modify the definitions of Formula Amount, Eligible Inventory or Eligible Receivables. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors each Credit Party, Lenders and the Note Purchasers Agent and all future holders of the Obligations. In the case of any waiver, each Credit Party, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then HSBC may, at its option, require such Lender to assign its Commitment Percentage of the Advances to HSBC or to another Lender or to any other Person designated by Agent (the "Designated Lender"), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees (excluding any Early Termination Fee) and all other Obligations due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event HSBC elects to require any Lender to assign its interest to HSBC or to the Designated Lender, HSBC will so notify such Lender in writing within forty five (45) days following such Lender's denial, and such Lender will assign its interest to HSBC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, HSBC or the Designated Lender, as appropriate, and Agent.
(d) The Collateral Notwithstanding the foregoing, Agent or may at its discretion and without the Note Purchasers mayconsent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) not to exceed the aggregate amount of $1,200,000 for up to thirty (30) consecutive days, provided, further, that Agent may permit such voluntary overadvances no more than three (3) times in any calendar year. For purposes of the Note Purchasers’ sole discretionpreceding sentence, regardless the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (i) 10%), Agent shall decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances involuntary overadvances shall be deemed to be Notes involuntary overadvances and shall be decreased in accordance with the preceding sentence. Agent shall promptly notify the Lenders after any voluntary overadvances are permitted to be made by Agent hereunder, and owing to the Note Purchasers and shall constitute Obligationsupon becoming aware thereof, of any involuntary overadvances.
Appears in 1 contract
Samples: Financing Agreement (Cpac Inc)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto each Loan Party, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Loan Parties’, Agent’s and the applicable Note Purchasers’ each Lender’s respective officersofficers as required under Section 17.2(b) hereof. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be chargedwriting complying with Section 17.2(b) hereof. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Borrowers may, subject to the provisions of this Section 14.2(b17.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by ObligorsBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers Loan Parties hereunder or Obligors thereunder or the conditions, provisions or terms hereof or thereof or waiving any Event of Default hereunder or thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note PurchasersLenders:
(i) increase the maximum dollar amount Commitment Percentage of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend increase the Term or the time for payment of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate)Maximum Revolving Advance Amount;
(iii) increase extend the Commitment maturity of any Note Purchaser without or the consent due date for any amount payable hereunder, or decrease the rate of each Note Purchaser directly affected therebyinterest (other than a waiver of the applicability of any Default Interest) or reduce any scheduled principal payment or fee payable by Borrowers to Lenders pursuant to this Agreement;
(iv) alter the definition of the term Required Lenders or alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and17.2(b);
(v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release during any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents having an aggregate value in any way.excess of $250,000;
(cvi) change the rights and duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances and Letter of Credit Obligations outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount; or
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors Loan Parties, Lenders and the Note Purchasers Agent and all future holders of the Obligations. In the case of any waiver, Loan Parties, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event that Agent requests the consent of a Lender pursuant to this Section 17.2 and such Lender shall not respond or reply to Agent in writing within ten (10) days of delivery of such request, such Lender shall be deemed to have consented to the matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to this Section 17.2 and such consent is denied, then GMAC CF may, at its option, require such Lender to assign its interest in the Advances to GMAC CF or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowers. In the event GMAC CF elects to require any Lender to assign its interest to GMAC CF or to the Designated Lender, GMAC CF will so notify such Lender in writing within forty-five (45) days following such Lender’s denial, and such Lender will assign its interest to GMAC CF or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, GMAC CF or the Designated Lender, as appropriate, and Agent.
(d) The Collateral Notwithstanding the foregoing, Agent or may at its discretion and without the Note Purchasers mayconsent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall decrease such excess in as expeditious a manner as is practicable under the Note Purchasers’ sole discretion, regardless of (i) circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances involuntary overadvances shall be deemed to be Notes made by and owing to the Note Purchasers involuntary overadvances and shall constitute Obligationsbe decreased in accordance with the preceding sentence.
Appears in 1 contract
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto each Loan Party, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Loan Parties’, Agent’s and the applicable Note Purchasers’ each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by ObligorsLoan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note PurchasersLenders:
(i) increase the maximum dollar amount Commitment Percentage of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend increase the Term Inventory Advance Cap or the time for payment of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate)Maximum Loan Amount;
(iii) increase extend the Commitment Original Term or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any Note Purchaser without the consent of each Note Purchaser directly affected therebyscheduled principal payment or fee payable by Loan Parties to Lenders pursuant to this Agreement;
(iv) alter the definition of the term Required Lenders or alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and16.2(b);
(v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release during any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents having an aggregate value in any way.excess of $1,000,000;
(cvi) change the rights and duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount; or
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date. and provided, further, that the Maximum Swingline Loan Amount may not be increased without the consent of the Swingline Lender. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors Loan Parties, Lenders and the Note Purchasers Agent and all future holders of the Obligations. In the case of any waiver, Loan Parties, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such Lender shall not respond or reply to Agent in writing within ten (10) days of delivery of such report, such Lender shall be deemed to have consented to the matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then HSBC may, at its option, require such Lender to assign its interest in the Advances to HSBC or to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Loan Parties. In the event HSBC elects to require any Lender to assign its interest to HSBC or to the Designated Lender, HSBC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to HSBC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, HSBC or the Designated Lender, as appropriate, and Agent.
(d) The Collateral Notwithstanding the foregoing, Agent or may at its discretion and without the Note Purchasers mayconsent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Factored Receivables”, “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall decrease such excess in as expeditious a manner as is practicable under the Note Purchasers’ sole discretion, regardless of (i) circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances involuntary overadvances shall be deemed to be Notes made by involuntary overadvances and owing shall be decreased in accordance with the preceding sentence.
(e) Anything contained herein to the Note Purchasers contrary notwithstanding, in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 16.2, the consent of Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Non-Consenting Lender, Borrower may, by giving written notice to Agent and any Non-Consenting Lender of its election to do so, elect to cause such Non-Consenting Lender (and such Non-Consenting Lender irrevocably agrees) to assign its outstanding Loans and its Commitments to a Transferee (each a “Replacement Lender”) in accordance with the provisions of Section 16.3; provided, (1) on the date of such assignment, the Replacement Lender shall constitute Obligations.pay
Appears in 1 contract
Samples: Loan Agreement (Verrazano,inc.)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto Loan Parties, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Loan Party’s, Agent’s and the applicable Note Purchasers’ each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Loan Documents executed by Obligorsthe Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors any Loan Party thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, :
(A) without the written consent of all Note Purchaserseach Lender affected thereby:
(i) increase the maximum dollar amount Commitment Percentage or the Commitment of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) extend increase the Term or Maximum Revolving Advance Amount (except, for the time avoidance of doubt, for payment any increase to the Maximum Revolving Advance Amount resulting from, and in accordance with, the provisions of principal or interest of any Notes (excluding the due date of any mandatory prepayment of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or the rate of interest borne by any Note or reduce any fee payable to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default RateSection 2.4);
(iii) increase extend the Commitment maturity of any Note Purchaser without or the consent due date for any amount payable hereunder, or decrease the rate of each Note Purchaser directly affected therebyinterest or reduce any scheduled principal payment, fee or any other amount payable by any Loan Party to Lenders pursuant to this Agreement (it being understood that a waiver of any Default, Event of Default or mandatory prepayment shall not constitute a reduction of the rate of interest or reduction of any principal payment, fee or other amount payable by any Loan Party);
(iv) alter the definition of the term Required Lenders or alter, amend or modify or waive any provision of this Section 15.2(b), including, without limitation, eliminating or reducing the provisions voting rights of the Lenders under this Section 15.2(b);
(v) other than in connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the terms hereof or the other Loan Documents, release any Borrower from any obligation for the payment of money or consent to the assignment or transfer by any Borrower or any Guarantor of any of its rights or duties under this Agreement or the other Loan Documents;
(vi) release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their obligations under the applicable Guaranty executed by such Guarantor;
(vii) amend, modify or waive the pro rata requirements of Section 11.6 2.13 or Section 11.2 or any type other provision of payment priority the Loan Documents requiring pro rata treatment of the Lenders; or
(viii) [reserved]; or
(B) without the consent of Agent, alter, amend, modify or similar payment waterfall waive the rights or duties of Agent;
(C) without the consent of the Note PurchasersIssuer, alter, amend, modify or waive the rights or duties of such Issuer; and
(vD) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release any Obligor (other than in accordance with Swingline Lender, alter, amend, modify or waive the provisions rights or duties of this Agreement) the Swingline Lender or subordinate increase the Obligations under the Note Documents in any way.
(c) Maximum Swingline Loan Amount. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Obligors each Loan Party, Lenders and the Note Purchasers Agent and all future holders of the Obligations.
(d) The Collateral . In the case of any waiver, the Loan Parties, Agent or the Note Purchasers mayand Lenders shall be restored to their former positions and rights, at and any time in the Note Purchasers’ sole discretion, regardless of (i) the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances Default waived shall be deemed to be Notes made by cured and owing not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event a Lender is a Non-Consenting Lender, then Borrower may, at its option, require such Lender to assign its Commitment Percentage of the Advances to HSBC (with HSBC’s consent) or to another Lender (with such Lender’s consent) or to any other Person that shall assume such obligations (the “Designated Lender”), for a price equal to the Note Purchasers then outstanding principal amount thereof plus accrued and unpaid interest and fees and all other Obligations due such Lender under this Agreement and the other Loan Documents, which interest and fees shall constitute Obligationsbe paid in full at the time of such assignment. In the event Borrower elects to require any Lender to assign its interest to HSBC or to the Designated Lender, Borrower will so notify such Lender in writing within forty five (45) days following such Xxxxxx’s denial, and such Lender will assign its interest to HSBC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, HSBC or the Designated Lender, as appropriate, and Agent.
Appears in 1 contract
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto each Loan Party, Agent and each Lender and Term Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by Loan Parties’, Agent’s, each ObligorLender’s and the Collateral AgentTerm Lender’s and the applicable Note Purchasers’ respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by ObligorsLoan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note PurchasersLenders:
(i) increase the maximum dollar amount Commitment Percentage of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected therebyLender;
(ii) increase the Inventory Advance Cap or the Maximum Loan Amount;
(iii) extend the Term or the time for payment of principal or interest of any Notes (excluding the due date of for any mandatory prepayment of the Notes)amount payable hereunder, or any fee payable to any Note Purchaser, or reduce the principal amount of or decrease the rate of interest borne by any Note or reduce any scheduled principal payment or fee payable by Loan Parties to any Note Purchaser, without the consent of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect Lenders pursuant to waive or rescind any imposition of the Default Rate);
(iii) increase the Commitment of any Note Purchaser without the consent of each Note Purchaser directly affected therebythis Agreement;
(iv) alter the definition of the term Required Lenders or alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall without the consent of the Note Purchasers; and16.2(b);
(v) release any Collateral (other than in accordance with the provisions of this Agreement and the Security Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release during any Obligor calendar year (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents having an aggregate value in any way.excess of $1,000,000;
(cvi) change the rights and duties of Agent;
(vii) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount; or
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date. and provided, further, that (A) the Maximum Swingline Loan Amount may not be increased without the consent of the Swingline Lender and (B) without the consent of Term Lender, neither the Term nor the due date for any amount payable hereunder with respect to the Term Loan may be extended, nor the rate of interest applicable to the Term Loan or the principal amount of the Term Loan may be reduced. Any such supplemental agreement shall apply equally to each Lender and Term Lender and shall be binding upon the Obligors Loan Parties, Lenders, Term Lender and the Note Purchasers Agent and all future holders of the Obligations. In the case of any waiver, Loan Parties, Agent and Lenders and Term Lender shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (whether or not the subsequent Event of Default is the same as the Event of Default which was waived), or impair any right consequent thereon.
(c) In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such Lender shall not respond or reply to Agent in writing within ten (10) days of delivery of such report, such Lender shall be deemed to have consented to the matter that was the subject of the request. In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such consent is denied, then HSBC may, at its option, require such Lender to assign its interest in the Advances to HSBC or to another Lender or to any other Person designated by Agent (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Loan Parties. In the event HSBC elects to require any Lender to assign its interest to HSBC or to the Designated Lender, HSBC will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Lender will assign its interest to HSBC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to a Commitment Transfer Supplement executed by such Lender, HSBC or the Designated Lender, as appropriate, and Agent.
(d) The Collateral Notwithstanding the foregoing, Agent or may at its discretion and without the Note Purchasers mayconsent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to one hundred and ten percent (110%) of the Formula Amount for up to thirty (30) consecutive Business Days. For purposes of the preceding sentence, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Factored Receivables”, “Eligible Receivables” or “Eligible Inventory”, as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall decrease such excess in as expeditious a manner as is practicable under the Note Purchasers’ sole discretion, regardless of (i) circumstances and not inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d), such Protective Advances involuntary overadvances shall be deemed to be Notes made involuntary overadvances and shall be decreased in accordance with the preceding sentence.
(e) Anything contained herein to the contrary notwithstanding, in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 16.2, the consent of Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Non-Consenting Lender, Borrower may, by giving written notice to Agent and any Non-Consenting Lender of its election to do so, elect to cause such Non-Consenting Lender (and such Non-Consenting Lender irrevocably agrees) to assign its outstanding Loans and its Commitments to a Transferee (each a “Replacement Lender”) in accordance with the provisions of Section 16.3; provided, (1) on the date of such assignment, the Replacement Lender shall pay to Non-Consenting Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Advances of the Non-Consenting Lender, (B) an amount equal to all unreimbursed drawings that have been funded by such Non-Consenting Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Non-Consenting Lender pursuant to Section 3.3; (2) on the Note Purchasers and date of such assignment, Borrower shall constitute Obligationspay any amounts payable to such Non-Consenting Lender pursuant to Section 2.2(g), 3.6, 3.8 or 3.
Appears in 1 contract
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith other Loan Documents contain the entire understanding between each Loan Party, the parties hereto Agent, the Lenders and the Issuer and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Agent’s and the applicable Note Purchasers’ respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, the Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties, may, subject to the provisions of this Section 14.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Loan Documents executed by Obligorsthe Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights or interests of the Collateral AgentLenders, the Note Purchasers Issuer, the Agent or Obligors the Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, the consent of the Issuer must be obtained with respect to any amendment, waiver or consent with respect to Sections 2.8, 2.9 and 2.10 or any other provisions, the amendment or waivers of which would adversely affect the Issuer; provided, further, however, the consent of the Swing Line Lender must be obtained with respect to any amendment, waiver or consent with respect to Sections 2.6 or any other provisions, the amendment or waivers of which would adversely affect the Swing Line Lender; and, provided, further, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note Purchasers:
(i) other than as permitted as set forth in Section 2.11 of this Agreement, increase the maximum dollar amount Revolving Commitment of any Note of any Note Purchaser Lender, without the written consent of each Note Purchaser directly affected therebythe Agent and such Lender;
(ii) extend the Term or the time for payment of principal or interest maturity of any Notes (excluding Note or the due date of for any mandatory prepayment amount payable hereunder without the written consent of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or Agent and each Lender affected thereby;
(iii) decrease the rate of interest borne by any Note or reduce any fee payable by the Loan Parties to any Note Purchaser, the Lenders and/or the Issuer pursuant to this Agreement without the written consent of the Agent and each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate);
(iii) increase the Commitment of any Note Purchaser without the consent of each Note Purchaser directly Lender and/or Issuer affected thereby;
(iv) alter the definition of the term Required Lenders without the consent of the Agent and each Lender;
(v) alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall 16.2(b) without the consent of the Note Purchasers; andAgent and each Lender;
(vvi) release any Collateral during any calendar year (other than in accordance connection with the provisions dispositions of collateral permitted by this Agreement and the Security DocumentsAgreement) having an aggregate value in excess of EUR 2,500,000 One Million Dollars ($1,000,000) without the consent of all Note Purchaserseach Lender; provided, however, that, if an Event of Default has occurred and is continuing, the consent of each Lender shall be required to release any such Collateral;
(vii) change the rights and duties of the Agent without the consent of each Lender;
(viii) increase the advance rates in the definition of Borrowing Base above the advance rates in effect on the Closing Date without the consent of each Lender;
(ix) release any Loan Party from the Obligations under this Agreement, or any Loan Document without the consent of each Lender; or
(vix) release any Obligor (other than in accordance with alter, amend or modify Section 11.6 hereof without the provisions consent of this Agreement) or subordinate the Obligations under the Note Documents in any way.
(c) each Lender. Any such supplemental agreement shall apply equally to each Lender and the Issuer and shall be binding upon the Obligors and Loan Parties, the Note Purchasers Lenders, the Issuer, the Agent and all future holders of the Obligations.
. In the case of any waiver, the Loan Parties, the Agent, the Lenders and the Issuer shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (d) The Collateral Agent whether or not the Note Purchasers maysubsequent Event of Default is the same as the Event of Default which was waived), at or impair any time in the Note Purchasers’ sole discretion, regardless of right consequent thereon. Notwithstanding (ia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (iic) any other contrary provision of this Agreement, make extensions the Agent may at its discretion and without the consent of credit the Lenders, voluntarily permit the outstanding Revolving Loans and the amount of Letters of Credit outstanding at any time to exceed one hundred five percent (105%) of the Borrowing Base for up to ninety (90) consecutive Business Days provided that such outstanding Advances do not exceed the Aggregate Revolving Commitment. For purposes of the preceding sentence, the discretion granted to the Obligors Agent hereunder shall not preclude involuntary overadvances that they in their reasonable business judgmentmay result from time to time due to the fact that the Borrowing Base was unintentionally exceeded for any reason, deem necessary including, but not limited to, Collateral previously deemed to be either “Eligible Accounts” or desirable (A) “Eligible Coal Inventory”, as applicable, becomes ineligible or collections of Accounts applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve or protect the Collateral, or any portion thereof, . In the event the Agent involuntarily permits the outstanding Advances to exceed the Borrowing Base by more than five percent (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d5%), the Agent shall use its efforts to have the Loan Parties decrease such Protective excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Advances made after the Agent has determined the existence of involuntary overadvances shall be deemed to be Notes made by and owing to the Note Purchasers involuntary overadvances and shall constitute Obligationsbe decreased in accordance with the preceding sentence.
(c) If, following the Closing Date, the Agent and the Borrower Representative shall have agreed in their sole and absolute discretion that there is an ambiguity, inconsistency, manifest error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Agent and the Borrower Representative shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof (it being understood that the Agent has no obligation to agree to any such amendment).
Appears in 1 contract
Samples: Credit and Security Agreement (Ramaco Resources, Inc.)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith other Loan Documents contain the entire understanding between each Loan Party, the parties hereto Agent, the Lenders and the Issuer and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Agent’s and the applicable Note Purchasers’ respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, the Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Loan Documents executed by Obligorsthe Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights or interests of the Collateral AgentLenders, the Note Purchasers Issuer, the Agent or Obligors the Loan Parties thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, the consent of the Issuer must be obtained with respect to any amendment, waiver or consent with respect to Sections 2.8, 2.9 and 2.10 or any other provisions, the amendment or waivers of which would adversely affect the Issuer and, provided, further, that no such supplemental agreement or amendment shall, in each case, without the consent of all Note Purchasers:
(i) increase the maximum dollar amount Revolving Commitment of any Note of any Note Purchaser Lender, without the written consent of each Note Purchaser directly affected therebythe Agent and such Lender;
(ii) extend the Term or the time for payment of principal or interest maturity of any Notes (excluding Note or the due date of for any mandatory prepayment amount payable hereunder without the written consent of the Notes), or any fee payable to any Note Purchaser, or reduce the principal amount of or Agent and each Lender affected thereby;
(iii) decrease the rate of interest borne by any Note or reduce any fee payable by the Loan Parties to any Note Purchaser, the Lenders and/or the Issuer pursuant to this Agreement without the written consent of the Agent and each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive or rescind any imposition of the Default Rate);
(iii) increase the Commitment of any Note Purchaser without the consent of each Note Purchaser directly Lender and/or Issuer affected thereby;
(iv) alter the definition of the term Required Lenders without the consent of the Agent and each Lender;
(v) alter, amend or modify the provisions of this Section 11.6 or any type of payment priority or similar payment waterfall 16.2(b) without the consent of the Note Purchasers; andAgent and each Lender;
(vvi) release any Collateral during any calendar year (other than in accordance connection with the provisions dispositions of collateral permitted by this Agreement and the Security DocumentsAgreement) having an aggregate value in excess of EUR 2,500,000 One Million Dollars ($1,000,000) without the consent of each Lender; provided, however, that, if an Event of Default has occurred and is continuing, the consent of each Lender shall be required to release any such Collateral; provided, however, notwithstanding anything in this Agreement to the contrary, upon repayment of the Term Loan, Agent shall be authorized and required to release any and all Note PurchasersLiens on the Equipment and any proceeds thereof, such that the Equipment and Proceeds related thereto shall no longer be Collateral, and the limitations on sale, divestiture, disposal, leasing and other restrictions, and representations, warranties, and covenants, with respect thereto shall be of no further effect;
(vii) change the rights and duties of the Agent without the consent of each Lender;
(viii) increase the advance rates in the definition of Borrowing Base above the advance rates in effect on the Closing Date without the consent of each Lender;
(ix) release any Loan Party from the Obligations under this Agreement, or any Loan Document without the consent of each Lender; or
(vix) release any Obligor (other than in accordance with alter, amend or modify Section 11.6 hereof without the provisions consent of this Agreement) or subordinate the Obligations under the Note Documents in any way.
(c) each Lender. Any such supplemental agreement shall apply equally to each Lender and the Issuer and shall be binding upon the Obligors and Loan Parties, the Note Purchasers Lenders, the Issuer, the Agent and all future holders of the Obligations.
. In the case of any waiver, the Loan Parties, the Agent, the Lenders and the Issuer shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default shall extend to any subsequent Event of Default (d) The Collateral Agent whether or not the Note Purchasers maysubsequent Event of Default is the same as the Event of Default which was waived), at or impair any time in the Note Purchasers’ sole discretion, regardless of right consequent thereon. Notwithstanding (ia) the existence of a Default or an Event of Default, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (iic) any other contrary provision of this Agreement, make extensions the Agent may at its discretion and without the consent of credit the Lenders, voluntarily permit the outstanding Revolving Loans and the amount of Letters of Credit outstanding at any time to exceed one hundred five percent (105%) of the Borrowing Base for up to ninety (90) consecutive Business Days provided that such outstanding Advances do not exceed the Aggregate Revolving Commitment. For purposes of the preceding sentence, the discretion granted to the Obligors Agent hereunder shall not preclude involuntary overadvances that they in their reasonable business judgmentmay result from time to time due to the fact that the Borrowing Base was unintentionally exceeded for any reason, deem necessary including, but not limited to, Collateral previously deemed to be either “Eligible Accounts” or desirable (A) “Eligible Coal Inventory”, as applicable, becomes ineligible or collections of Accounts applied to reduce outstanding Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve or protect the Collateral, or any portion thereof, . In the event the Agent involuntarily permits the outstanding Advances to exceed the Borrowing Base by more than five percent (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors pursuant to the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers as provided for in this Section 14.2(d5%), the Agent shall use its efforts to have the Loan Parties decrease such Protective excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Advances made after the Agent has determined the existence of involuntary overadvances shall be deemed to be Notes made by and owing to the Note Purchasers involuntary overadvances and shall constitute Obligationsbe decreased in accordance with the preceding sentence.
(c) If, following the Closing Date, the Agent and the Borrower Representative shall have agreed in their sole and absolute discretion that there is an ambiguity, inconsistency, manifest error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Agent and the Borrower Representative shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof (it being understood that the Agent has no obligation to agree to any such amendment).
Appears in 1 contract
Samples: Credit and Security Agreement (Ramaco Resources, Inc.)
Entire Understanding; Amendments. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the parties hereto Loan Parties, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guaranties guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each Obligor’s and the Collateral Loan Party’s, Agent’s and the applicable Note Purchasers’ each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Obligor Loan Party acknowledges that it has been advised by counsel in connection with the execution of the Note this Agreement and Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Collateral AgentRequired Lenders, Agent with the consent in writing of the Required Note Purchasers Lenders, and the Obligors Loan Parties may, subject to the provisions of this Section 14.2(b15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Loan Documents executed by Obligorsthe Loan Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or interests of the Collateral Agent, the Note Purchasers or Obligors any Loan Party thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement or amendment shall, in each case, : (A) without the written consent of all Note Purchasers:
each Lender affected thereby: (i) increase the maximum dollar amount Commitment Percentage or the Commitment of any Lender; (ii) increase the Maximum Revolving Advance Amount (except, for the avoidance of doubt, for any increase to the Maximum Revolving Advance Amount resulting from, and in accordance with, the provisions of Section 2.4); (iii) extend the maturity of any Note of any Note Purchaser without the consent of each Note Purchaser directly affected thereby;
(ii) extend the Term or the time for payment of principal or interest of any Notes (excluding the due date of for any mandatory prepayment of the Notes)amount payable hereunder, or any fee payable to any Note Purchaser, or reduce the principal amount of or decrease the rate of interest borne by any Note or reduce any scheduled principal payment, fee or any other amount payable by any Loan Party to Lenders pursuant to this Agreement (it being understood that a waiver of any Note PurchaserDefault, without the consent Event of each Note Purchaser directly affected thereby (except that the Required Note Purchasers may elect to waive Default or rescind any imposition mandatory prepayment shall not constitute a reduction of the Default Rate);
(iii) increase the Commitment rate of interest or reduction of any Note Purchaser without the consent of each Note Purchaser directly affected thereby;
principal payment, fee or other amount payable by any Loan Party); (iv) alter the definition of the term Required Lenders or alter, amend or modify or waive any provision of this Section 15.2(b), including, without limitation, eliminating or reducing the provisions of Section 11.6 or any type of payment priority or similar payment waterfall without the consent voting rights of the Note PurchasersLenders under this Section 15.2(b); and
(v) release any Collateral (other than in accordance connection with a merger, liquidation, dissolution or sale of such Person expressly permitted by the provisions terms hereof or the other Loan Documents, release any Borrower from any obligation for the payment of money or 111
(c) In the event a Lender is a Non-Consenting Lender, then Borrower may, at its option, require such Lender to assign its Commitment Percentage of the Advances to HSBC (with HSBC’s consent) or to another Lender (with such Lender’s consent) or to any other Person that shall assume such obligations (the “Designated Lender”), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees and all other Obligations due such Lender under this Agreement and the Security other Loan Documents) having an aggregate value in excess of EUR 2,500,000 without the consent of all Note Purchasers; or
(vi) release any Obligor (other than in accordance with the provisions of this Agreement) or subordinate the Obligations under the Note Documents in any way.
(c) Any such supplemental agreement , which interest and fees shall be binding upon paid in full at the Obligors time of such assignment. In the event Borrower elects to require any Lender to assign its interest to HSBC or to the Designated Lender, Borrower will so notify such Lender in writing within forty five (45) days following such Xxxxxx’s denial, and the Note Purchasers and all future holders of the Obligations.
(d) The Collateral Agent such Lender will assign its interest to HSBC or the Note Purchasers may, at any time in the Note Purchasers’ sole discretion, regardless Designated Lender no later than five (5) days following receipt of (i) the existence of a Default or an Event of Default, or (ii) any other contrary provision of this Agreement, make extensions of credit to the Obligors that they in their reasonable business judgment, deem necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of, or maximize the amount of, repayment of the Notes and other Obligations, or (C) to pay any other amount chargeable to Obligors such notice pursuant to a Commitment Transfer Supplement executed by such Lender, HSBC or the terms of this Agreement (the “Protective Advances”). To the extent any Protective Advances are not actually funded by the Note Purchasers Designated Lender, as provided for in this Section 14.2(d)appropriate, such Protective Advances shall be deemed to be Notes made by and owing to the Note Purchasers and shall constitute ObligationsAgent.
Appears in 1 contract
Samples: Loan and Security Agreement (Veeco Instruments Inc)
