Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Parties, Agent’s and 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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders: (i) increase the Commitment Percentage or the maximum dollar commitment of any Lender; (ii) extend the maturity of the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement; (iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b); (iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement; (v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or (vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 2 contracts
Samples: Term Loan and Security Agreement (Boot Barn Holdings, Inc.), Term Loan and Security Agreement (Boot Barn Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Parties, Agent’s and 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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount (other than as permitted pursuant to Section 2.25);
(ii) extend the maturity of the Term Notes, Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained);
(vi) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(vivii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent PNC or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates PNC (with AgentPNC’s consent) 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 Borrower. In the event Agent PNC or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent.
(a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount (the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Overadvance Threshold Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. The If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold 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 Overadvance Threshold Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.), Revolving Credit and Security Agreement (Boot Barn Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender fails to respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Aventine Renewable Energy Holdings Inc), Revolving Credit and Security Agreement (Aventine Renewable Energy Holdings Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach Note Party, Agent and each Lender Purchaser and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Loan PartiesIssuer’s, Agent’s and each LenderPurchaser’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 chargedwriting and in accordance with this Agreement. Each Loan Note Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other the other Note Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Lenders, Purchasers (or the Agent with the consent in writing of the Required Lenders, Purchasers) and the Loan Parties Issuer may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other other Note Documents executed by the Loan Note Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lendersthe Purchasers, Agent or the Loan Note 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 shall, without shall be effective if the consent of all Lenderseffect would:
(i) increase the Commitment Percentage or the maximum dollar commitment of any LenderPurchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by Borrower to Lenders pursuant to this Agreementeach Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Lenders Purchasers or alter, amend or modify this Section 15.2(b)16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (other than in accordance with the terms of this Agreement and in connection with a permitted transfer ii) release all or sale thereof) or as required by the terms substantially all of the Intercreditor Agreementaggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) materially change the rights and duties of Agent (provided the Agent’s consent is obtained), or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender Purchaser and shall be binding upon the Loan Note Parties, Lenders the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Loan Note Parties, Agent and Lenders Purchasers 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. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that Agent requests (i) the Issuer has requested that the Purchasers consent to a departure or waiver of a Lender pursuant any provisions of the Note Documents or agree to this Section 15.2 any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent is deniedconsent, waiver or amendment, then Agent or Borrower with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its optionsole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Lender Non-Consenting Purchaser to assign sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interest in interests, rights and obligations with respect to the Loans Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to GC-Cap and/or its Affiliates one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (with Agent’s consent) or to another Lender or to any other Person designated by provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (the “Designated Lender”any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), for a price provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the then applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount thereof plus of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliatesfees) or the Designated Lender no later than five Issuer (5) days following receipt to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such notice sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to an Assignment Agreement executed by such Lender, GC-Cap Section 16.3 within ten (or its Affiliate10) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized Business Days of any request therefor by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, Issuer or any portion thereofPurchaser, (b) the Non-Consenting Purchaser shall automatically be deemed to enhance the likelihood of, or maximize the amount of, repayment of the Loans have executed and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any delivered such Loans the outstanding Loans do not exceed $2,000,000Assignment and Assumption.
Appears in 2 contracts
Samples: Note Purchase Agreement (Keane Group, Inc.), Note Purchase Agreement (Keane Group, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.3(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) increase the Maximum Revolving Advance Amount;
(iii) extend the maturity of any instrument evidencing any of the Term Notes, Obligations or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.3(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially alter the definition of any of the following terms (A) EBITDA, (B) Fixed Charge Coverage Ratio, (C) Inventory Advance Rates, (D) Rent Reserve, (E) Formula Amount, or (F) Undrawn Availability;
(vi) release any Borrower or Guarantor, or release any Collateral during any calendar year having an aggregate value in excess of $2,000,000; or
(vii) change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (E Com Ventures Inc), Revolving Credit and Security Agreement (E Com Ventures Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any LenderLender without the consent of such Lender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of the Term Notes, principal or interest of any Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) except in connection with any increase pursuant to Section 2.25 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders;
(iv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b)16.2(b) without the consent of all Lenders;
(ivv) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by excess of $1,000,000 without the terms consent of the Intercreditor Agreementall Lenders;
(vvii) materially change the rights and duties of Agent without the consent of all Lenders;
(provided Agent’s viii) subject to clauses (e) and (f) below, 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 without the consent is obtained)of all Lenders; or
(viix) release any Guarantor from its obligations under its Guaranty other than increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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.
(d) In the event that Agent requests the consent of a Lender pursuant to this Section 16.2 and such Lender fails to respond or reply to Agent in writing within five (5) 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 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(e) Notwithstanding (i) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfiedsatisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement, Agent may at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, the Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-Formula Loans in accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, 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 any of “Eligible Receivables,” “Eligible Inventory,” “Eligible Vendor Receivables,” “Eligible Credit Card Receivables” or “Eligible Fuel 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, at any time in the Agent’s sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this AgreementAgreement (the “Protective Advances”); provided, that the Protective Advances made hereunder shall not exceed one hundred ten percent (110%) of the Formula Amount in the aggregate and provided further that at any time after giving effect to any such Loans Protective Advances, the outstanding Loans Revolving Advances and Maximum Undrawn Amount of all outstanding Letters of Credit do not exceed $2,000,000the Maximum Revolving Advance Amount. The Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefore upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (ARKO Corp.), Revolving Credit and Security Agreement (ARKO Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the applicable Loan Parties’, Agent’s and 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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the applicable Loan Parties may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by such Loan Parties (or by Borrowing Agent on behalf of the Loan PartiesBorrowers), for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the such 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 (w) without the consent of the Required Term Loan Lenders, no such supplemental agreement may change the amortization or application of prepayments with respect to the Term Loan, (x) no such supplemental agreement may change the rights and duties of Agent without Agent’s consent thereto, (y) no such supplemental agreement may change the rights and duties of any Co-Collateral Agent without such Co-Collateral Agent’s consent thereto, and (z) no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentages, the maximum dollar commitment of any Lender, the Maximum Revolving Advance Amount, the Maximum Canadian Revolving Advance Amount or the Maximum U.S. Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by any Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement);
(v) materially change increase the rights and duties of Agent (provided Agent’s consent is obtained); orAdvance Rates above the Advance Rates in effect on the Closing Date;
(vi) release any Guarantor from its obligations hereunder or under its Guaranty other than in connection with a permitted transfer or sale thereof the Other Documents.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the applicable Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In .
(d) If any action to be taken by the event that Lenders or Agent requests hereunder requires the consent unanimous consent, authorization or agreement of all Lenders, and a Lender pursuant that is not also a Co- Collateral Agent (such Lender a “Holdout Lender”) fails to this Section 15.2 and give its consent, authorization or agreement, then, provided that the Required Lenders (or Required Term Loan Lenders, as applicable) have provided such consent is deniedconsent, then authorization or agreement, Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates Borrowing Agent (with the approval of Agent’s consent), upon at least five (5) Business Days’ prior irrevocable notice to the Holdout Lender, may permanently replace the Holdout Lender with one or more substitute Lenders that are reasonably acceptable to another Lender or to any other Person designated by the Agent (the each, a “Designated Replacement Lender”), and the Holdout Lender shall have no right to refuse to be replaced hereunder. Such notice to replace the Holdout Lender shall specify an effective date for a price equal such replacement, which date shall not be later than fifteen (15) Business Days after the date such notice is given. Prior to the effective date of such replacement, the Holdout Lender and each Replacement Lender shall execute and deliver a Commitment Transfer Supplement, subject only to the Holdout Lender being repaid all of its outstanding Obligations without any premium or penalty of any kind whatsoever (other than breakage expenses and other amounts pursuant to Section 2.2(b)(v). If the Holdout Lender shall refuse or fail to execute and deliver any such Commitment Transfer Supplement prior to the effective date of such replacement, the Holdout Lender shall be deemed to have executed and delivered such Commitment Transfer Supplement. The replacement of any Holdout Lender shall be made in accordance with the terms of Section 15.3. Until such time as the Replacement Lender shall have acquired all of the Obligations, the Commitments and the other rights and obligations of the Holdout Lender hereunder and under the Other Documents, the Holdout Lender shall remain obligated to make the Holdout Lender’s Pro Rata Share of Loans and to purchase its pro rata share of its participation in each Letter of Credit.
(e) Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (iii) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders (provided, that Required Lenders (or, if there are then only two Lenders, any Co- Collateral Agent) may prospectively revoke Agent’s ability to make Out-of-Formula Loans), voluntarily permit the outstanding Canadian Revolving Advances at any time to exceed the Canadian Formula Amount by up to ten percent (10%) of the Canadian Formula Amount and/or the U.S. Revolving Advances at any time to exceed the U.S. Formula Amount by up to ten percent (10%) of the U.S. Formula Amount, in each case, for up to thirty (30) consecutive Business Days in any ninety (90) day period (collectively, the “Out-of-Formula Loans”); provided, that, (i) the aggregate amount of Out-of-Formula Loans and Protective Advances shall not exceed 10% of the U.S. Formula Amount or Canadian Formula Amount, as applicable, (ii) the aggregate amount of Out-of-Formula Loans, Protective Advances and the other then outstanding principal Revolving Advances shall not exceed the Maximum Revolving Advance Amount and (iii) the aggregate amount thereof plus accrued of Out-of-Formula Loans and unpaid interest Protective Advances shall not exceed $5,000,000 at any one time outstanding. If Agent is willing in its sole and fees due absolute discretion to make such LenderOut-of-Formula Loans, which interest and fees such Out-of-Formula Loans shall be paid when collected payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from Borrower. In the event Agent or Borrower elects time to require any Lender to assign its interest to GC-Cap or its Affiliates or time due to the Designated Lenderfact that the applicable Formula Amount was unintentionally exceeded for any reason, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denialincluding, and such Lender will assign its interest but not limited to, Collateral previously deemed to GC-Cap (be either “Eligible Receivables” or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender“Eligible Inventory”, as appropriateapplicable, becomes ineligible, or collections of Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds.
(f) In addition to (and Agent. The not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretiondiscretion (provided, that Required Lenders (or, if there are then only two Lenders, any Co-Collateral Agent) may prospectively revoke Agent’s ability to make such Protective Advances), (Ai) after the occurrence and during the continuation of a Default or an Event of Default, or (Bi) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans U.S. Revolving Advances to Borrower the U.S. Borrowers and/or Canadian Revolving Advances to the Canadian Borrowers (collectively, “Protective Advances”) on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to any Borrower pursuant to the terms of this Agreement; provided, that at (x) any time after giving effect to any such Loans Protective Advance (i) the outstanding Loans Canadian Revolving Advances do not exceed one hundred and ten percent (110%) of the Canadian Formula Amount, (ii) the outstanding U.S. Revolving Advances do not exceed one hundred and ten percent (110%) of the U.S. Formula Amount, (iii) the aggregate amount of Protective Advances, Out-of-Formula Loans and other then outstanding Revolving Advances shall not exceed the Maximum Revolving Advance amount, and (iv) the aggregate amount of Protective Advances and Out-of-Formula Loans shall not exceed $2,000,0005,000,000 at any one time outstanding and (y) the Agent may, not withstanding anything above to the contrary, make Protective Advances after the occurrence and during the continuation of a Default or an Event of Default to the extent the aggregate amount of such Protective Advances and Out-of-Formula Loans does not exceed $2,500,000.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.), Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 72 74 agreement in writing, signed by the party to be charged. Each Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor guarantor from its any obligations under its Guaranty other than in connection guarantee with a permitted transfer or sale thereof respect to the Obligations. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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 73 75 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 16.2 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding the foregoing, Agent is hereby authorized by may at its discretion and without the Loan Parties and consent 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 in due to the Agent’s sole discretionfact that the Formula Amount was unintentionally exceeded for any reason, (A) after the occurrence and during the continuation including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of a Default Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or an Event of Default, overadvances are made to protect or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance . In the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans event Agent involuntarily permits the outstanding Loans do Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall endeavor to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not exceed $2,000,000inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (PVC Container Corp), Revolving Credit, Term Loan and Security Agreement (PVC Container Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the each Loan Parties Party may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 the any Loan Parties Party 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower any Loan Party to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the each Loan PartiesParty party thereto, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”), provided that such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 sum of the outstanding Revolving Advances and the Maximum Undrawn Amount to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances (such Revolving Advances being referred to as “Agent Advances”) to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (TCP International Holdings Ltd.), Revolving Credit and Security Agreement (TCP International Holdings Ltd.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$500,000
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be deemed to have consented to 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the
(a) For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation continuance of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 2 contracts
Samples: Revolving Credit and Security Agreement (Akrion, Inc.), Revolving Credit and Security Agreement (Akrion, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other Revolving Advance to be made if after giving effect thereto the total of 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.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer effect on the Closing Date.
(viii) increase the Maximum Revolving Advance Amount or sale thereof 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 ten percent (110%) of the Formula Amount. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. 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 five (5) days of delivery of such request, such Lender shall be deemed to have consented to 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Semx Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesTHIS AGREEMENT AND THE DOCUMENTS EXECUTED CONCURRENTLY HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, Agent and each Lender and supersedes all prior agreements and understandingsCONTEMPORANEOUS, if any, relating to the subject matter hereofOR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Parties, Agent’s and 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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this AgreementTHERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(b) The Required LendersLender, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of LendersLender, Agent Agent, Borrower or the Loan Parties any Guarantor 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders each Guarantor, Lender and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, Agent and Lenders 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties Borrower, each Guarantor and the LendersLender, from time to time in the Agent’s sole discretion, (Aa) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of Lender which the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (ai) to preserve or protect the Collateral, or any portion thereof, (bii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans Revolving Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Outstanding Commitments do not exceed $2,000,000one hundred and ten percent (110%) of the Maximum Commitment Amount.
Appears in 1 contract
Samples: Revolving Credit Agreement (Behringer Harvard Reit I Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of any of the Term Notes, Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee or principal amounts payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$500,000.
(v) materially increase the Maximum Revolving Advance Amount.
(vi) change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vivii) permit any Advance to be made if after giving effect thereto the total of 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.
(viii) release any Guarantor from Borrower or Guarantor.
(ix) increase Advance Rates above the Advance Rates in effect on the Closing Date. In all other respects the Agent is authorized to take such actions or fail to take such actions if the Agent, in its obligations under its Guaranty other than reasonable discretion, deems such to be advisable and in connection with a permitted transfer or sale thereof the best interest of Lenders, including, but not limited to, the making of an overadvance unless it is specifically instructed to the contrary by Required Lenders. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Graham Field Health Products Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, 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. Notwithstanding the foregoing, Agent and Borrowing Agent may modify this Agreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Delayed Draw Term Loan Commitment Percentage or the maximum dollar commitment amount of any Lenderthe Delayed Draw Term Loan without the consent of such Lender directly affected thereby;
(ii) extend the maturity Term or the time for payment of principal or interest of the Term Notes, or Loans (excluding the due date for of any amount payable hereundermandatory prepayment of the Loans), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by the Loans or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 hereof (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) alter the definition of the term “Required Lenders Lenders” or alter, amend or modify this Section 15.2(b)16.2(b) without the consent of all Lenders;
(iv) alter, amend or modify the provisions of Section 11.5 hereof without the consent of each Lender directly and adversely affected thereby;
(v) release all or substantially all of the Collateral (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereofAgreement) or as required by without the terms consent of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained)all Lenders directly affected thereby; or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Borrower without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Term Loan Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the scheduled due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all any Collateral during any calendar year (other than Collateral, the disposition of which is dealt with elsewhere in this Agreement, including without limitation Section 4.3) having an aggregate value in excess of $500,000;
(v) change the rights and duties of Agent;
(vi) 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 substantially all exceed one hundred and ten percent (110%) of the Collateral Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viii) release any Guarantor, other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender fails to respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Katy Industries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrowers, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties each Borrower may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Lenders, Agent or the Loan Parties any Borrower 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 shallshall (x) --------- ------- amend Sections 6.5, 6.6, 6.7, 6.8, 6.9, 6.10 or 7.6 without the consent of 67% of the Lenders or (y) without the consent of all the Lenders:
(i) increase or decrease the Commitment Percentage of any Lender or the maximum dollar commitment of any Lender;Maximum Loan Amount or the Advance Rates.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Agent or Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all any Collateral during any calendar year having an aggregate value in excess of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;$100,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender of the Lenders and shall be binding upon Borrowers, the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, Agent and the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Radnor Holdings Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter or hereafter made shall have no force and effect unless in writing, signed and executed by the Loan Partiesparty or parties making such representations, Agent’s and each Lender’s respective officerswarranties or guaranties. 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage Percentage, Maximum Revolving Loan Commitment or the maximum dollar commitment Maximum Term Loan Commitment of any Lender;
(ii) increase any of the Advance Rates to in excess of (x) 85% with respect to the Receivables Advance Rate and (y) 60% with respect to the Inventory Advance Rate and Agent acknowledges that the limitations contained in this Section 15(b)(ii) shall apply to Section 2.1(b) hereof;
(iii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iiiiv) release any of the Collateral (other than permitted hereunder);
(v) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(ivvi) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vivii) release except as otherwise expressly provided in this Agreement, reduce the principal of, or interest on, any Guarantor from its Note or any Letter of Credit reimbursement obligations under its Guaranty other than in connection with a permitted transfer or sale thereof any fees hereunder. Any such supplemental agreement shall apply equally to each Lender of Lenders and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders Lenders, for a period of up to 180 consecutive days, which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed the Formula Amount by more than $2,000,0005,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Fonda Group Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrowers, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties each Borrower may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Note or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Lenders, Agent or the Loan Parties any Borrower 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 shall-------- ------- shall (x) amend Sections 6.5, 6.6 or 7.6 without the consent of 67% of the Lenders or (y) without the consent of all the Lenders:
(i) increase or decrease the Commitment Percentage of any Lender or the maximum dollar commitment of any Lender;Maximum Loan Amount or the Advance Rates.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Agent or Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all any Collateral during any calendar year having an aggregate value in excess of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;$500,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 in connection with a permitted transfer sixty (60) consecutive Business Days or sale thereof exceed one hundred and ten percent (110%) of the Formula Amount. Any such supplemental agreement shall apply equally to each Lender of the Lenders and shall be binding upon Borrowers, the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, Agent and the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Radnor Holdings Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. hereof Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower thereunder or the conditions, provisions or terms thereof or of waiving any Default or Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of any Note, the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$100,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default or Default waived shall be deemed to be cured and not continuing, but no waiver of a specific Event of Default or Default shall extend to any subsequent Event of Default or Default (whether or not the subsequent Event of Default or Default is the same as the Event of Default or 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 five (5) 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 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for
(a) For purposes of this paragraph, 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 “Eligible Receivables” or “Eligible Unbilled Receivables” 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 use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that ~4 at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Kenexa Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by Notwithstanding (a) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, satisfied or (c) to pay any other amount chargeable to Borrower pursuant to the terms provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that at any time after giving effect to any that, such Loans the outstanding Loans Advances do not exceed $2,000,000.the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Empeiria Acquisition Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$50,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty Revolving Advance other than EXIM Revolving Advances 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.
(vii) permit any EXIM Revolving Advance to be made if, after giving effect thereto, the total of EXIM Revolving Advances outstanding hereunder would exceed the Formula Amount for more than ninety (90) consecutive Business Days or exceed $325,000 above the Formula Amount provided that EXIM Revolving Advances may never exceed the Maximum EXIM Revolving Advance Amount.
(viii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding the foregoing, Agent is hereby authorized by may at its discretion and without the Loan Parties and consent 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 in due to the Agent’s sole discretionfact that the Formula Amount was unintentionally exceeded for any reason, (A) after the occurrence and during the continuation including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of a Default Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or an Event of Default, overadvances are made to protect or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance . In the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans event Agent involuntarily permits the outstanding Loans do 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 circumstances and not exceed $2,000,000inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Rheometric Scientific Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or any of the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers thereunder or the conditions, provisions or terms thereof or of waiving any covenant, obligation or Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$500,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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 sixty (60) consecutive Business Days or exceed $1,000,000; or
(vivii) release any Guarantor from its obligations under its Guaranty other than increase the Advance Rate above the Advance Rate in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) Business Days of delivery of such request, such Lender shall be deemed to have consented to 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty forty-five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Eltrax Systems Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof material Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(a) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, satisfied or (c) to pay any other amount chargeable to Borrower pursuant to the terms provision of this Agreement; provided, that Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time after giving effect to any exceed the Formula Amount hereof at such time by up to five percent (5%) of the Formula Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans"). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the outstanding Loans Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do not exceed $2,000,000.make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Union Drilling Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Parties, a Responsible Officer of each Credit Party and Agent’s 's and each Lender’s '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 Loan Credit Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, amending, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers hereunder or thereunder or the conditions, provisions or terms hereof or 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 shall:
(i) increase or extend the Revolving Commitment, the Revolving Commitment Percentage or the Revolving Commitment Amount of any Lender without the consent of such Lender (it being understood that if a Lender provides its consent to any such increase or extension such Lender may provide that such consent is subject to the completion of its due diligence under Flood Laws in a manner satisfactory to such Lender);
(ii) waive, extend or postpone the Maturity Date or any date fixed by this Agreement or any Other Document for any scheduled payment of principal or interest of any Advance (excluding the due date of any mandatory prepayment of an Advance), or any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless imposed by Agent));
(iii) except in connection with any increase pursuant to Section 2.24 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Lenders or Supermajority Lenders or alter, amend or modify this Section 15.2(b)16.2(b) or any provision of this Agreement providing for consent or other action by all Lenders, without the consent of all Lenders;
(ivv) alter, amend or modify the provisions of Section 2.6(e), 2.20, 11.5 or any other provision of this Agreement providing for the pro rata treatment of the Lenders (to the extent such alteration, amendment or modification would affect such pro rata treatment) without the consent of all Lenders;
(vi) except as permitted by Section 14.14, release all or substantially all of the Collateral (other than in accordance with without the terms consent of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreementall Lenders;
(vvii) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a liquidation, dissolution or disposition of a Credit Party permitted transfer by the terms hereof or otherwise consented to by Required Lenders or the payment in full of the Obligations, release any Credit Party from its liability for the Obligations without the consent of all of the Lenders;
(viii) except in connection with the sale thereof or disposition of a Guarantor consented to by Required Lenders, release the Guaranty by a Guarantor without the consent of all of the Lenders; or
(ix) increase the Advance Rates above the Advance Rates in effect on the Closing Date or otherwise modify the Formula Amount or Gross Amount if the effect to increase the amount available to be borrowed by Borrowers without the consent of the Supermajority Lenders. Notwithstanding the foregoing:
(A) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the Other Documents pertaining to Issuer, or any other rights or duties of Issuer under this Agreement or the Other Documents, without the written consent of Issuer, Agent, Borrowers and the Required Lenders;
(B) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the Other Documents pertaining to Swing Loan Lender, or any other rights or duties of Swing Loan Lender under this Agreement or the Other Documents, without the written consent of Swing Loan Lender, Agent, Borrowers and the Required Lenders;
(C) No amendment, waiver, modification, elimination, or consent shall amend, modify, or waive any provision of this Agreement or the Other Documents pertaining to Agent, or any other rights or duties of Agent under this Agreement or the Other Documents, without the written consent of Agent, Borrowers and the Required Lenders;
(D) Anything in this Section 16.2(b) to the contrary notwithstanding, (i) any amendment, modification, elimination, waiver, consent, termination, or release of, or with respect to, any provision of this Agreement or any Other Document that relates only to the relationship of the Lenders among themselves, and that does not affect the rights or obligations of any Credit Party, shall not require consent by or the agreement of any Credit Party, and (ii) any amendment, waiver, modification, elimination, or consent of or with respect to any provision of this Agreement or any Other Document may be entered into without the consent of, or over the objection of, any Defaulting Lender; and
(E) The Fee Letter may only be amended with the consent of Agent and Borrowers (it being understood that no Lender's consent shall be required).
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. .
(d) In the event that Agent or Borrowing Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower Borrowing Agent may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Agent or to another Lender or to any other Person designated by the Agent or Borrowing Agent in compliance with Sections 3.11 and 16.3 (the “"Designated Lender”"), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five ten (4510) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(e) Notwithstanding (i) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfiedsatisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement at any time an Out-of-Formula Loan exists or Borrowers make a request for an Advance that would result in an Out-of-Formula Loan, Agent may in its discretion and without the consent of any Lender, knowingly and intentionally, continue to make Revolving Advances (any such intentional Revolving Advance, an "Intentional Overadvance") to Borrowers for a period of 60 days (as such period may be extended by Required Lenders) unless such authorization is revoked by Required Lenders effective upon receipt by Agent of written notice of such revocation from Required Lenders; provided, that Agent may not make any Intentional Overadvance if, after giving effect to such Intentional Overadvance, the aggregate outstanding Intentional Overadvances would exceed ten percent (10%) of the Maximum Revolving Advance Amount (or such higher amount as Required Lenders may consent to) or would cause the Advances to exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make Intentional Overadvances, Lenders holding the Revolving Commitments shall be obligated to fund such Intentional Overadvances in accordance with their respective Revolving Commitment Percentages, and such Intentional Overadvances shall be payable on demand and shall bear interest at the rate applicable for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does make Intentional Overadvances, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, the discretion granted to Agent hereunder to make Intentional Overadvances shall not be limited by the amount of the Out-of-Formula Loan. To the extent any Intentional Overadvances are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Intentional Overadvances and any such Intentional Overadvances so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by Borrowers and Lenders, at any time in Agent's sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, (iii) whether an Out-of-Formula Loan exists, or (iv) any other contrary provision of this Agreement, to make Loans Revolving Advances (the "Protective Advances") to Borrower Borrowers on behalf of the Lenders (unless such authorization is revoked by Required Lenders effective 10 days after receipt by Agent of prior written notice of such revocation from Required Lenders) which Agent, in its reasonable business judgmentPermitted Discretion, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at the Protective Advances made hereunder shall not exceed ten percent (10%) of the Maximum Revolving Advance Amount (unless Required Lenders agree to a higher amount). Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any time after giving effect to Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Loans Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(g) Notwithstanding the foregoing Sections 16.2(e) and 16.2(f), at no time shall the aggregate total outstanding Loans do not Intentional Overadvances and Protective Advances exceed $2,000,000ten percent (10%) of the Maximum Revolving Advance Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Great Lakes Dredge & Dock CORP)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Loan Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date or amend the definition of “Formula Amount” if the effect of such amendment is to increase the amount available to be borrowed by Borrowers.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances to Domestic Borrowers and the Maximum Undrawn Amount at any time to exceed an amount equal to the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 Borrowers to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Presstek Inc /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in excess of $1,000,000 (including, without limitation, in connection with any release of Collateral as to which a permitted transfer or sale thereof) or as "Release Notice" is required by pursuant to the terms of Section 14 of the Intercreditor Subordination Agreement;).
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Revolving Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Vista Information Solutions Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Health Chem Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith Other Documents contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, any Note or the scheduled due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$100,000;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or;
(vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date;
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof respective Guaranty; or
(ix) release IFS Management from its obligations under the Keep Well Agreement. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. 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 five (5) 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 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC, Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Eos International Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer Borrower or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Merisel Inc /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partiesamong each 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan applicable Credit Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents (other than with respect to Cash Management Products and Services and Lender-Provided Xxxxxx, other similar agreements or the Fee Letter, which shall require only the consent of the parties thereto) executed by the Loan applicable Credit 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 the Loan Credit 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty's, Agent’s 's and each Lender’s '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. The parties hereto shall be permitted to amend this Agreement and the Other Documents without further approval or order of the Bankruptcy Court so long as such amendment is not material (for purposes hereof, a "material" amendment shall mean, any amendment that operates to increase the interest rate other than as currently provided in this Agreement, increase the Maximum Revolving Advance Amount, add specific new Events of Default or enlarge the nature and extent of default remedies available to the Agent following an Event of Default). Each Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other Documents the documents executed concurrently herewith and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Revolver Commitment Percentage or the maximum dollar commitment of any Lender;, without the consent of each Lender directly affected thereby (including, if applicable, any Defaulting Lender).
(ii) increase the Maximum Revolving Advance Amount without the consent of each Lender.
(iii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Loan Parties to Lenders pursuant to this Agreement;Agreement without the consent of each Lender directly affected thereby (including, if applicable, any Defaulting Lender).
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv16.2(b) release all or substantially all without the consent of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;each Lender.
(v) materially change the rights and duties of Agent without the consent of each Lender. Notwithstanding anything contained herein to the contrary, the Required Lenders, and Agent with the consent in writing of the Required Lenders, may from time to time, without the consent of any other Lender:
(provided Agent’s consent is obtainedi) release any Collateral (including in connection with a sale pursuant to Section 363 or Section 1129 of the Bankruptcy Code); ;
(ii) permit any Revolving Advance to be made or Letter of Credit to be issued if, after giving effect thereto, the total of Advances outstanding hereunder would not exceed the sum of the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred five percent (105%) of the Gross Formula Amount;
(iii) increase the Advance Rates above the Advance Rates in effect on the Closing Date, or
(viiv) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof release of Collateral described in clause (i) above. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “"Designated Lender”"), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders (but subject to the Required Lenders not having notified the Agent that it shall no longer make such Advances), voluntarily permit the sum of the outstanding Revolving Advances, the outstanding Swing Loans and the Maximum Undrawn Amount at any time to exceed the Formula Amount by up to five percent (5%) of the Gross Formula Amount (or such greater amount as shall be consented to by Required Lenders) for up to sixty (60) consecutive Business Days (or such longer period as shall be consented to by Required Lenders) (the "Out‑of‑Formula Loans"); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out‑of‑Formula Loans, such Out‑of‑Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out‑of‑Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances or outstanding Swing Loans 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, the outstanding Swing Loans and the Maximum Undrawn Amount to exceed the Formula Amount by more than five percent (5%) of the Gross Formula Amount, Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent, and PNC with respect to Swing Loans, is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances and/or Swing Loans to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Revolving Advances and/or Swing Loans the outstanding Revolving Advances and the outstanding Swing Loans do not exceed $2,000,000(unless Required Lenders otherwise agree) the lesser of (i) one hundred and five percent (105%) of the Formula Amount and (ii) the Maximum Revolving Advance Amount.
Appears in 1 contract
Samples: Debt Agreement (Castle a M & Co)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b)Section, from time to time time, enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower 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 shall, without the consent of all Lenders:
Lenders (i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;
Lender or the Maximum Advances Amount, (ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
, (iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
Section, (iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;
$100,000.00, (v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
, (vi) permit any Revolving Advance or Term Advance to be made if after giving effect thereto the total Advances outstanding hereunder would exceed one hundred five percent (105%) of the maximum Advances capable of being borrowed hereunder for more than sixty (60) consecutive Business Days, (vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date, or (viii) release any Guarantor from its obligations under its Guaranty guarantor or other than in connection with a permitted transfer third party obligor for the Obligations or sale thereof any part thereof. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. 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 five (5) 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 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) CoBank 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates CoBank or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) CoBank or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) CoBank or the Designated Lender, as appropriate, and Agent. The Notwithstanding (i) the existence of a Default or an Event of Default, (ii) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (iii) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances and Term Advances at any time to exceed the sum of the maximum Advances capable of being borrowed hereunder minus the Maximum Undrawn Amount of all outstanding Letters of Credit, by up to ten percent (10%) of such sum for up to thirty (30) consecutive Business Days (the “Out-of-Formula Advances”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Advances, such Out-of-Formula Advances shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances or Term Advances, as applicable, consisting of Domestic Rate Advances; provided that, if Lenders do make Out-of-Formula Advances, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Article II of this Agreement. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the sum of the maximum Advances capable of being borrowed hereunder minus the Maximum Undrawn Amount of all outstanding Letters of Credit was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be either “Eligible Accounts”, “Eligible Hedge Margin Accounts”, or “Eligible Inventory”, as applicable, becomes ineligible, collections of Accounts applied to reduce outstanding Revolving Advances or Term 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 or Term Advances to exceed the sum of the maximum Advances capable of being borrowed hereunder minus the Maximum Undrawn Amount of all outstanding Letters of Credit by more than ten percent (10%), Agent shall use its efforts to have Borrower 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 and Term Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances and Term Advances permitted above in this Section, the Agent is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s sole discretion, (Ai) after the occurrence and during the continuation of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances and Term Advances to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the maximum Revolving Advances capable of being borrowed hereunder.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (FCStone Group, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the among each Loan PartiesParty, Agent and Agent, each Lender and the Trust and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty's, Agent’s 's and each Lender’s '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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;Lender without the consent of each Lender directly affected thereby.
(ii) increase the Maximum Revolving Advance Amount without the consent of each Lender.
(iii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Loan Parties to Lenders pursuant to this Agreement;Agreement without the consent of each Lender directly affected thereby.
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);16.2(b) without the consent of each Lender.
(ivv) release all or substantially all of the any Collateral during any calendar year (other than actions consisting of sales, transfers and other dispositions of Collateral specifically permitted in accordance with the terms provisions of this Agreement Agreement) having an aggregate value in excess of Four Million and in connection with a permitted transfer or sale thereof00/100 Dollars ($4,000,000.00) or as required by without the terms consent of the Intercreditor Agreement;each Lender.
(vvi) materially change the rights and duties of Agent (provided Agent’s without the consent is obtained); orof each Lender.
(vivii) permit any Revolving Advance to be made or Letter of Credit to be issued if after giving effect thereto the total of Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred ten percent (110%) of the Formula Amount without the consent of each Lender.
(viii) increase the Advance Rates above the Advance Rates in effect on the Closing Date without the consent of each Lender.
(ix) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Individual Guarantor without the consent of each Lender. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “"Designated Lender”"), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by Notwithstanding (a) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, satisfied or (c) to pay any other amount chargeable to Borrower pursuant to the terms provision of this Agreement; provided, that Agent may at its discretion unless otherwise directed by the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances, the outstanding Swing Loans and the Maximum Undrawn Amount at any time after giving effect to any such Loans exceed an amount equal to the outstanding Loans do not exceed $2,000,000.difference of (i) the Formula Amount minus (ii) the
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (General Finance CORP)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$500,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 or Overadvance Threshold Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Hybrook Resources Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Loan Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$250,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Receivables Advance Rate above the Receivables Advance Rate in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 “Eligible Receivables”, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all LendersLenders affected thereby:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Borrowers Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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 16.2 and such consent is denieddenied (each, a “Non-Consenting Lender”), then Agent or Borrower PNC may, at its option, require such Non-Consenting Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Non-Consenting Lender’s denial, and such Non-Consenting Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the LendersAdditionally, from time to time in the Agent’s sole discretion, event any Lender (Aother than PNC) after the occurrence and during the continuation of a Default (i) requests compensation under Sections 3.7 or an Event of Default3.9, or (B) at any time that any of requires the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) Borrowers to pay any other additional amount chargeable due to Borrower any Lender’s status pursuant to the terms of this Agreement; provided, that at any time after giving effect Section 3.11 to any Lender or any Governmental Body for the account of any Lender, (iii) is a Defaulting Lender or (iv) is a Non-Consenting Lender referred to in this Section 16.2(c), then in any such Loans event Borrowers may, at their sole expense, upon notice to such Lender and Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, this Section 16.3), all of its interests, rights and obligations under this Agreement and the Other Documents to an assignee acceptable to Agent in its sole discretion that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(i) Borrowers shall have paid to Agent the assignment fee specified in Section 16.3(e) hereof;
(ii) such Lender shall have received payment of an amount equal to the outstanding Loans do principal of its outstanding Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.17) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrowers (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under Sections 3.7 or 3.9, such assignment will result in a reduction in such compensation or payments thereafter; and
(iv) such assignment does not exceed $2,000,000conflict with Applicable Law. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Flotek Industries Inc/Cn/)
Entire Understanding. (a) This Agreement and the documents Other Documents executed concurrently herewith contain the entire understanding between the and among each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partiesrespective officers of the party making such promises, Agent’s and each Lender’s respective officersrepresentations, warranties, or guarantees. Neither this Agreement nor any Other Document nor any portion or provisions hereof or thereof 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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this AgreementAgreement or any Other Document.
(b) The Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b17.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any LenderLender without the consent of such Lender directly affected thereby;
(ii) whether or not any Revolving Advances are outstanding, extend the maturity Term or the time for payment of the Term Notes, principal or interest of any Revolving Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Revolving Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Revolving Advances or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 hereof or of default rates of letter of credit fees (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) increase the Maximum Revolving Amount without the consent of all Lenders;
(iv) alter the definition of the term “Required Lenders Lenders” or alter, amend or modify this Section 15.2(b)17.2(b) without the consent of all Lenders;
(ivv) alter, amend or modify the provisions of Section 12.2 hereof without the consent of all Lenders;
(vi) release all or substantially all of the and/or subordinate Agent’s Liens on any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor AgreementMateriality Threshold without the consent of all Lenders;
(vvii) materially change the rights and duties of Agent without the consent of all Lenders;
(provided Agent’s viii) subject to clause (e) below, permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Borrowing Base for more than sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Borrowing Base without the consent is obtained)of each Lender directly affected thereby;
(ix) increase the Applicable Advance Rate above the Applicable Advance Rate in effect on the Closing Date or alter the definition of “Eligible Mortgage Loans” (or adjust the applicability of the criteria therein, including, without limitation, any part of Annex Two, Part I hereof, the definition of Funding Cap, or the definition of Funding Requirements) in a manner that has the effect of increasing the Borrowing Base or the availability of Revolving Advances, in any case, without the consent of all Lenders;
(x) release any Loan Party without the consent of all Lenders; or
(vixi) release permit Borrower to assign or transfer any Guarantor from of its rights or obligations under its Guaranty other than in connection with a permitted transfer or sale thereof this Agreement without the prior written consent of Agent and each Lender.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. .
(d) In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 17.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Revolving Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerLoan Parties. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(e) Notwithstanding (i) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 9.2 hereof have not been satisfiedsatisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement, Agent may at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Borrowing Base by up to ten percent (10%) of the Borrowing Base for up to thirty (30) consecutive days (the “Out-of-Formula Loans”); provided, that, Required Lenders may at any time revoke Agent’s authorization to make or permit Out-of-Formula Loans under this Section 17.2(e) and any such revocation must be in writing and shall become effective prospectively upon the Agent’s receipt thereof. If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-Formula Loans in accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment. For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary Overadvances that may result from time to time due to the fact that the Borrowing Base was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Mortgage Loans”, 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 Borrowing Base by more than ten percent (10%), Agent shall use its efforts to have Loan Parties 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 involuntary Overadvances shall be deemed to be involuntary Overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 17.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 17.2, Agent is hereby authorized by Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section 9.2 hereof have not been satisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement, to make Loans Revolving Advances (“Protective Advances”) to Borrower Loan Parties on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Revolving Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Loan Parties pursuant to the terms of this Agreement; provided, that the aggregate amount of all Protective Advances and Out-of-Formula Loans shall not exceed ten percent (10%) of the Maximum Revolving Amount and, provided, further, that at any time after giving effect to any such Loans Protective Advances and any outstanding Out-of-Formula Loans, the outstanding Loans Revolving Advances do not exceed $2,000,000the Maximum Revolving Amount. Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances (to the extent permitted above) and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 17.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
Appears in 1 contract
Samples: Credit and Security Agreement (Sachem Capital Corp.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Loan Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$500,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent.
(a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. The If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Hudson Technologies Inc /Ny)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Credit Parties, Agent and each Lender Secured Party and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Credit Party’s, Agent’s and 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 Loan Credit Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other other Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Credit Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other other Loan Documents executed by the Loan Credit 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 the Loan Credit 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount (or any component thereof).
(ii) extend the maturity of the Term Notes, any Revolving Credit Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender Secured Party and shall be binding upon the Loan Credit Parties, Lenders and Agent Secured Parties and all future holders of the Obligations. In the case of any waiver, the Loan Parties, Agent Credit Parties and Lenders Secured Parties 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 that 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 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Virco MFG Corporation)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Guarantors, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed and executed by the Loan Partiesparty or parties making such representations, Agent’s and each Lender’s respective officerswarranties or guarantees. 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 Loan Party Borrower and each Guarantor acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other Ancillary Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b17.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the Other Ancillary Documents executed by the Loan PartiesBorrower and each Guarantor, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Lenders, Agent Agent, Borrower or the Loan Parties Guarantors 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; provided, however, that no such supplemental agreement shall, without the consent of all the Lenders:
(i) increase the Commitment Percentage Percentages of any Lender or alter any provision in respect of the sharing of Obligations and duties among Agent and Lenders or among the Lenders.
(ii) increase the Maximum Revolving Advance Amount or the maximum dollar commitment of any LenderTerm Loan;
(iiiii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b17.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially release any Collateral other than in compliance with Article XV of the Loan Agreement;
(vi) change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vivii) release any Guarantor from its obligations under its Guaranty other than waive the conditions precedent contained in connection with a permitted transfer Section 8.1(k) or sale thereof Section 8.2(e) hereof. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Guarantors, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, Guarantors, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Oil & Gas Revolving Credit and Term Loan Agreement (Transtexas Gas Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if anyof, or relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed and executed by the Loan Partiesparty or parties making such representations, Agent’s and each Lender’s respective officerswarranties or guarantees. 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all the Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) increase the Maximum Loan Amount or the Maximum Revolving Advance Amount or permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding would exceed the Formula Amount for more than sixty (60) consecutive Business days or exceed 110% of the Formula Amount;
(iii) extend the final maturity of the Term Notes, any Note or the due any scheduled date for any amount payment of principal, interest or fees payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(ivv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000; or
(vvi) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Danskin Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith Other Documents contain the entire understanding between the Loan Credit 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and each the applicable 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 Loan Credit Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Credit Parties signatory hereto may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan such Credit 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 the Loan such Credit 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 shall, shall without the consent of all Lenders:
(i) increase the Commitment Percentage Percentages or the maximum dollar commitment of any LenderLender or the amount of any Delayed Draw Term Loan Amount;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of the Term Notes, principal or interest of any Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 hereof (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially alter, amend or modify the provisions of Section 11.5 hereof;
(vi) change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vivii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Credit Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan Credit 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. .
(d) In the event that Agent requests or Borrowers request the consent of a Lender (other than Lafayette Square or any of its Affiliates) pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower Borrowers may, at its optiontheir respective option and upon five (5) Business Days prior written notice to Agent (if given by Borrowers) and such Lender (a “Non-Consenting Lender”), require such Non-Consenting Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Lafayette Square, or if Lafayette Square shall decline to purchase such interest, to another Lender or to any other Person designated by eligible to become a Purchasing Lender in accordance with the Agent (the “Designated Lender”terms of Section 15.3(c), for a price equal to the then outstanding principal amount thereof plus accrued and unpaid interest and fees due such Non-Consenting Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower elects to require any Non-Consenting Lender is required to assign its interest to GCinterests hereunder, such Non-Cap or its Affiliates or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such Lender’s denial, and such Consenting Lender will assign its interest interest, pursuant to GCa Transfer Supplement, on the date specified in the notice given to such Non-Cap (or its Affiliates) or the Designated Lender Consenting Lender, which shall be no later than five fifteen (515) days following receipt Business Days after the date of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap notice.
(or its Affiliatee) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties each Borrower and the Lenders, from time to time in the Agent’s sole discretion, (Ai) after the occurrence and during the continuation of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (ax) to preserve or protect the Collateral, or any portion thereof, (by) to enhance the likelihood of, or maximize the amount of, repayment of the Loans Advances and other Obligations, or (cz) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Direct Digital Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty's, Agent’s 's and each Lender’s '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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Loan Parties to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement Agreement) having an aggregate value in excess of Two Hundred Fifty Thousand and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;00/100 Dollars ($250,000.00).
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) permit any Advance to be made or issued if after giving effect thereto the total of Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “"Designated Lender”"), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount hereof at such time by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the "Out-of-Formula Loans"); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 Collateral previously deemed to be "Eligible Inventory", or "Eligible Receivable", 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 use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred percent (100%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Horsehead Holding Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other other Loan Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement. All parties hereto acknowledge that they have participated equally in the drafting of this Agreement and each other Loan Document, and that therefore any cannons of interpretation providing that the provisions or language of a document shall be construed against the drafter thereof shall be inapplicable to this Agreement and the Loan Documents and each party hereto waives all rights to asset any arguments, claims or defenses based thereon.
(b) The Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other other Loan Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or and/or the maximum dollar commitment of any LenderLender or increase the Maximum Revolving Advance Amount or the Maximum Term Loan Amount;
(ii) extend the maturity of the Term Notes, any Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Borrower. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, Agent and Lenders shall be restored to their former positions and rights, and any Event of Default waived shall be deemed to be cured waived 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances and the Loan Documents to GC-Cap and/or its Affiliates (with Agent’s consent) Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant notice. Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to an Assignment Agreement executed exceed the Formula Amount hereof at such time by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such LenderOut-of-Formula Loans, GCsuch Out-Cap (of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans and shall also be subject to the fees provided for under Section 3.1(b) hereof; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 its Affiliate) or the Designated Lender“Eligible Inventory”, as appropriateapplicable, 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 use its efforts to have Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and Agentnot inconsistent with the reason for such excess. The Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation continuance of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Swenson Granite Co LLC)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all LendersLenders affected thereby:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denieddenied (each, a “Non-Consenting Lender”), then Agent or Borrower PNC may, at its option, require such Non-Consenting Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Non-Consenting Lender’s denial, and such Non-Consenting Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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”, “Eligible Extended Term Receivables”, “Eligible Government Receivables”, “Eligible Unbilled Receivables” or “Eligible Costs in Excess of Xxxxxxxx”, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that that, at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Englobal Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:Lenders (together with the written concurrence of the Borrowers for those agreements to which they are parties):
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than actions consisting of sales, transfers and other dispositions of Collateral specifically permitted under this Agreement) having an aggregate value in accordance with the terms excess of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 thirty (30) consecutive Business Days, exceed one hundred and five percent (105%) of the Formula Amount or exceed total Commitment Percentages.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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 thereonon such subsequent Event of Default. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed an amount equal to the Formula Amount by up to one hundred and five percent (105%) 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 five percent (5%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred five percent (105%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Maxum Petroleum Holdings, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting
(a) For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Gaiam, Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Receivables Advance Rate above the Receivables Advance Rate in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed an amount equal to the Formula Amount hereof at such time by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Revolving Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 “Eligible Receivables” 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Osteotech Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesObligors, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Obligor's, Agent’s 's and each Lender’s '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 Loan Party Obligor acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties each Obligor may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesObligors, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of the Lenders, Agent or the Loan Parties any Obligor 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 shall, (x) amend Sections 6.5, 6.6, 6.7, 6.8 and 7.6 without the consent of 67% of the Lenders or (y) without the consent of all the Lenders:
(i) increase or decrease the Commitment Percentage of any Lender or the maximum dollar commitment of any Lender;Maximum Loan Amount or the Advance Rates.
(ii) extend the maturity of the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Obligors to Agent or Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all any Security Asset during any calendar year having an aggregate value in excess of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;$100,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender of the Lenders and shall be binding upon the Loan PartiesObligors, the Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesObligors, Agent and the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Supplement Revolving Multicurrency Credit Agreement (Styrochem U S Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Loan Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or Eligible Receivables or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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 in any ninety (90) consecutive day period or exceed one hundred and seven and one half percent (107.5%) of the Formula Amount;
(vii) increase the Receivables Advance Rate above the Receivables Advance Rate in effect on the Closing Date;
(viii) release any Guarantor; or
(viix) release any Guarantor from its obligations under its Guaranty other than change the allocation of payments set forth in connection with a permitted transfer or sale thereof Section 11.5. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that If any action to be taken by Agent requests the or Lenders hereunder requires unanimous consent of and a Lender pursuant fails to this Section 15.2 and such consent is deniedgive its consent, then Agent provided that the Required Lenders have provided such consent, authorization or Borrower agreement, then PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to five percent (5%) of the Formula Amount for up to sixty (60) consecutive Business Days in any ninety (90) consecutive day period (the “Out- of- Formula Loans”); provided that at any time after giving effect to any such Revolving Advances, the outstanding Revolving Advances do not exceed the Maximum Loan Amount less the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit. If Agent is willing in its sole and absolute discretion to make such Out- of- Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 “Eligible Receivables”, 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 five percent (5%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000(x) one hundred and five percent (105%) of the Formula Amount or (y) the Maximum Loan Amount less the aggregate Maximum Undrawn Amount of all outstanding Letters of Credit.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Green Plains Renewable Energy, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partiesamong 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Credit Party's, Agent’s 's and each Lender’s '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 Loan Credit Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Credit Parties may, subject to the provisions of this Section 15.2(b17.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan Credit 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 the Loan Credit Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b17.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Credit Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan Credit 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 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 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding the foregoing, Agent is hereby authorized by may at its discretion and without the Loan Parties and consent 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 in due to the Agent’s sole discretionfact that the Formula Amount was unintentionally exceeded for any reason, (A) after the occurrence and during the continuation including, but not limited to, Collateral previously deemed to be either "Eligible Receivables" or "Eligible Inventory", as applicable, becomes ineligible, collections of a Default Receivables applied to reduce outstanding Revolving Advances are thereafter returned for insufficient funds or an Event of Default, overadvances are made to protect or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance . In the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans event Agent involuntarily permits the outstanding Loans do Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have the Borrowers decrease such excess in as expeditious a manner as is practicable under the circumstances and not exceed $2,000,000inconsistent with the reason for such excess. Revolving Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence.
Appears in 1 contract
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Sunsource Inc)
Entire Understanding. (a) This Agreement and the documents Other Documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunderhereunder (excluding any mandatory prepayment), or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) permit any Revolving Advance to be made if after giving effect thereto the total of Advances outstanding hereunder would exceed the Formula Amount for more than thirty (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Advances at any time to exceed the Formula Amount required hereof at such time by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 Advances to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower decrease such excess in as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such excess. Advances made after Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Advances to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Advances the outstanding Loans Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Apac Customer Service Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach Borrower, Administrative Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Administrative Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Administrative Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Administrative Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender, or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Administrative Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rate above the Advance Rate in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer Borrower or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Administrative Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, Administrative 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. In the event that Administrative Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Administrative 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 BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Administrative Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Administrative Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Administrative Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Administrative Agent and/or Lenders do make Out-of-Formula Loans, neither Administrative Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Administrative 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 “Eligible Receivables” 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 (subject to the limitations set forth in the next succeeding paragraph in the case of overadvances that are made to protect or preserve the Collateral). In the event Administrative Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), Administrative Agent shall use its efforts to have Borrowers 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 Administrative Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. Notwithstanding the foregoing, after Administrative Agent has determined the existence of involuntary overadvances, Administrative Agent and/or Lenders may continue to make Revolving Advances; provided, however, that consent of the Required Lenders shall be required to continue to make Revolving Advances if the aggregate outstanding Revolving Advances (a) exceeds the Formula Amount by more than one hundred and ten percent (110%) for more than ten (10) consecutive Business Days, or (b) exceeds the Formula Amount by less than or equal to one hundred and ten percent (110%) for more than thirty (30) consecutive Business Days (inclusive of any period described in the immediately preceding clause (a), if applicable). In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Administrative Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Administrative Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Administrative Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount; and provided further, that, following any Event of Default pursuant to Section 10.23 hereof which has not been cured, the exercise of the Administrative Agent’s discretion, as permitted hereby, to make Revolving Advances to the Borrowers on behalf of the Lenders shall be limited to the period beginning on the date that the Administrative Agent has been notified of such Event of Default and ending forty-five (45) days thereafter. Notwithstanding anything to the contrary contained herein, Lenders shall make available to Administrative Agent their pro rata share of each Out-of-Formula Loan, each Revolving Advance made after Administrative Agent has determined the existence of involuntary overadvances and each Revolving Advance made to preserve or protect Collateral and for other purposes provided pursuant to the immediately preceding paragraph, in each case in accordance with the provisions of Section 2.20(c) above.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Comforce Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$2,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Crocs, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$500,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release increase the Maximum Revolving Advance Amount or permit any Guarantor from its obligations under its Guaranty other Advance to be made if after giving effect thereto the total of 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.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be deemed to have consented to 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Pc Service Source Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, 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. Notwithstanding the foregoing, Agent and Borrowing Agent may modify this Agreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the written consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Revolving Commitment Percentage or the maximum dollar commitment amount of the Revolving Commitment Amount of any LenderLender without the written consent of such Lender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of the Term Notes, principal or interest of any Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable to any Lender, without the written consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 hereof or of default rates of Letter of Credit fees under Section 3.2 hereof (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) increase the Maximum Revolving Advance Amount without the written consent of all Lenders;
(iv) alter the definition of the term “Required Lenders Lenders” or alter, amend or modify this Section 15.2(b)16.2(b) or any provision of this Agreement that requires the consent of all Lenders without the written consent of all Lenders;
(ivv) alter, amend or modify the provisions of Section 11.5 hereof without the written consent of each Lender directly and adversely affected thereby;
(vi) release all or substantially all of the Collateral or any Guarantor under any Guaranty (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereofAgreement) or as required by without the terms written consent of the Intercreditor Agreementall Lenders;
(vvii) materially change subject to Section 16.2(e) below, permit any Revolving Advance to be made if after giving effect thereto the rights total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than sixty (60) consecutive Business Days or exceed one hundred and duties ten percent (110%) of Agent the Maximum Revolving Advance Amount without the written consent of all Lenders;
(provided Agent’s viii) increase the Advance Rates above the Advance Rates in effect on the NinthTenth Amendment Effective Date without the written consent is obtained)of all Lenders; or
(viix) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Borrower without the written consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. .
(d) In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the (i) then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowerthe Loan Parties. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent will so notify such Lender in writing within forty five (45) days following such LenderXxxxxx’s denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(e) Notwithstanding (i) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfiedsatisfied or the Revolving Commitments have been terminated for any reason, or (iii) any other contrary provision of this Agreement, Agent may at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Maximum Revolving Advance Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-Formula Loans in accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a) hereof nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, 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 “Eligible Receivables”, “Eligible Insured Foreign 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 Maximum Revolving Advance Amount by more than ten percent (10%), Agent shall use its efforts to have the Loan Parties 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted in Section 16.2(e) above, Agent is hereby authorized by the Loan Parties and Lenders, at any time in Agent’s sole discretion, regardless of (i) the existence of a Default or an Event of Default, (ii) whether any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or the Revolving Commitments have been terminated for any reason, or (iii) any other contrary provision of this Agreement, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower the Loan Parties pursuant to the terms of this Agreement; providedAgreement (the “Protective Advances”). Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment with respect to such Revolving Advances.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Parties, Agent Borrower and each Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Parties, Agent’s Borrower's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and the Other Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the Required Lenders, Lenders and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent Lenders or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
: (i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
. (iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Borrower and Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan Parties, Agent Borrower 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Loan Agreement (McMS Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunderhereunder (excluding any mandatory prepayment), or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 thirty (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. 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 five (5) 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 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (P&f Industries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding -80- or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; providedPROVIDED, howeverHOWEVER, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other Revolving Advance to be made if after giving effect thereto the total of 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.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date.
(viii) increase the Maximum Revolving Advance Amount. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Trescom International Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach Borrower, each Affiliate Guarantor, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, each Affiliate Guarantor's, Agent’s 's and each Lender’s '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 Loan Party Borrower and each Affiliate Guarantor acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers and Affiliate Guarantors may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by Borrowers and the Loan PartiesAffiliate Guarantors, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent Agent, Borrowers or the Loan Parties Affiliate Guarantors 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$500,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(vii) increase (x) the aggregate principal amount of the Term Loan, (y) the Maximum Capital Expenditure Loan Amount, or (z) Maximum Revolving Advance Amount or 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 ten percent (110%) of the Formula Amount.
(viii) release any Affiliate Guarantor from its obligations arising hereunder or under its Guaranty other than in connection with a permitted transfer or sale thereof the Other Documents. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Affiliate Guarantors, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, Affiliate Guarantors, 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 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 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Agent 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 Borrower. In the event Agent or Borrower IBJW elects to require any Lender to assign its interest to GC-Cap or its Affiliates IBJW or to the Designated Lender, Agent IBJW will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) IBJW or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) IBJW or the Designated Lender, as appropriate, and Agent. The Notwithstanding the foregoing, Agent is hereby authorized by may at its discretion and without the Loan Parties and consent 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 in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant due to the terms fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral which was previously deemed to be Eligible Receivables becoming ineligible or collections of this Agreement; provided, that at any time after giving effect Receivables which were applied to any such Loans the reduce outstanding Loans do not exceed $2,000,000Revolving Advances are thereafter returned for insufficient funds.
Appears in 1 contract
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b14.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Advance Amount;
(ii) extend the maturity of the Term Notes, Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b14.2(b);; or
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vic) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit Agreement (Crystal River Capital, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Credit 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Credit Parties', Agent’s 's and each Lender’s '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 Loan Credit Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Credit Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan applicable Credit Party or Credit 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 the Loan Credit Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Credit Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan Credit 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrower and/or the other Credit Parties. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty forty-five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent.
(a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed an amount equal to the sum of (i) the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 8.1(ff) hereof at such time (such sum, the "Overadvance Threshold Amount") by up to ten percent (10%) of the Overadvance Threshold Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans"). The If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this Section 16.2, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be "Eligible Receivables," "Seasonal 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 or Overadvance Threshold Amount by more than ten percent (10%), Agent shall use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrower, the Loan Parties Guarantors and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan, Guaranty and Security Agreement (Us Home & Garden Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and 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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all LendersLenders adversely affected thereby:
(i) increase the Commitment Percentage or the maximum dollar commitment of any extend, with respect to such Lender;
(ii) extend , the maturity of the Term Notes, Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iiiii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iviii) release all or substantially all of the Collateral (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreementany Other Document);
(viv) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(viv) release any material Guarantor from its obligations under its Guaranty (other than in connection accordance with a permitted transfer the terms of this Agreement or sale thereof any Other Document). Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Nektar Therapeutics)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach Borrower, Agent and each Lender and supersedes all prior agreements and understandings, written or oral, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) except in connection with an increase pursuant to Section 2.24, increase the Revolving Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Loan Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed an amount equal to the sum of (i) the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 6.5(c) hereof at such time (such sum, the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Overadvance Threshold Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”) whether with respect to Revolving Advances made to Borrowers. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, the discretion granted to Agent hereunder shall not preclude involuntary overadvances that may result from time to time due to the fact that the Overadvance Threshold Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible Inventory,” “Eligible Receivables,” 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 Overadvance Threshold Amount by more than ten percent (10%), Agent shall use its efforts to have the Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount with respect to Borrowers.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (SMTC Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty's, Agent’s 's and each Lender’s '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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;Lender or increase the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement Agreement) having an aggregate value in excess of Ten Million and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;00/100 Dollars ($10,000,000.00).
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) permit any Revolving Advance to be made if after giving effect thereto the sum of the Revolving Advances outstanding and the Dollar Equivalent amount of Letters of Credit outstanding hereunder would exceed (x) the Maximum Revolving Advance Amount or (y) the Formula Amount for more than thirty (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor Loan Party from its obligations the Obligations under its Guaranty other than in connection with a permitted transfer this Agreement, the applicable Guaranty, if any, or sale thereof any Other Document.
(ix) alter, amend or modify Section 11.5 hereof. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent.
(a) 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 (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances and the Dollar Equivalent amount of Letters of Credit outstanding at any time to exceed one hundred and five percent (105%) of the Formula Amount for up to thirty (30) consecutive Business Days provided that such outstanding Advances do not exceed the Maximum Revolving Advance Amount. The 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 five percent (5%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s 's sole discretion, (Aa) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems necessary or desirable (ai) to preserve or protect the Collateral, or any portion thereof, (bii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances, the outstanding Loans Revolving Advances and the Dollar Equivalent amount of Letters of Credit outstanding do not exceed $2,000,000one hundred five percent (105%) of the Formula Amount or the Maximum Revolving Advance Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Allegheny Technologies Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partiesamong Borrowers, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrowers’, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunderhereunder (excluding any mandatory prepayment), or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$300,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent PNC or Borrower the Company (with Agent’s consent) may, at its their option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent or Company (with Agent’s consent and provided such other Person is reasonably acceptable to 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 BorrowerBorrowers. In the event Agent PNC or Borrower the Company (with Agent’s consent) elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty forty-five (45) days following such Lender’s denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Intcomex, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by Borrower or others, including specifically the Loan PartiesFinancial Support Undertaking, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other Revolving Advance to be made if after giving effect thereto the total of Advances 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.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date.
(viii) increase the Maximum Revolving Advance Amount.
(ix) Modify the definitions contained herein of the terms Eligible Inventory and Eligible Receivables. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. 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 five (5) days of receipt of such request, such Lender shall be deemed to have consented to 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Warner Chilcott PLC)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Revolving Commitment Percentage Percentage, or the maximum dollar commitment amount of the Revolving Commitment Amount of any LenderLender without the consent of such Lender directly affected thereby;
(ii) whether or not any Advances are outstanding, extend the maturity Term or the time for payment of the Term Notes, principal or interest of any Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) increase the Maximum Loan Amount (except in accordance with Section 2.24) without the consent of all Lenders;
(iv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b)16.2(b) without the consent of all Lenders;
(ivv) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by excess of $1,000,000 without the terms consent of the Intercreditor Agreementall Lenders;
(vvii) materially change the rights and duties of Agent without the consent of all Lenders;
(provided Agent’s viii) subject to the provisions set forth below, 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 thirty (30) consecutive Business Days in any ninety (90) consecutive day period or exceed the lesser of (1) one hundred and five percent (105%) of the Formula Amount and (2) the Maximum Loan Amount minus the Maximum Undrawn Amount of Letters of Credit minus the outstanding balance of Swing Loans without the consent is obtained)of all Lenders;
(ix) increase the Advance Rates above the Advance Rates in effect on the Closing Date, increase the sublimits set forth in the Formula Amount or alter the definitions of Eligible Receivables, Eligible Insured Foreign Receivables, Eligible Un-Insured Foreign Receivables, Eligible Off-load Receivables, Eligible Stored Natural Gas Inventory, Eligible In-Transit Inventory, Eligible On-Track Inventory, Eligible Inventory or Eligible In-Tank Inventory in a manner that would increase the Formula Amount without the consent of Supermajority Lenders;
(x) release any Borrower or Guarantor (except as permitted herein) without the consent of all Lenders; or
(vixi) release any Guarantor from its obligations under its Guaranty other than amend or modify the pro rata treatment of Lenders as set forth in connection with a permitted transfer or sale thereof Section 2.20 hereof without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that .
(d) If any action to be taken by Agent requests the or Lenders hereunder requires unanimous consent of and a Lender pursuant fails to this Section 15.2 and such consent is deniedgive its consent, then Agent provided that the Required Lenders have provided such consent, authorization or Borrower agreement, then PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(e) Notwithstanding (i) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfiedsatisfied or the commitments of Lenders to make Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement, Agent may at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (5%) of the Formula Amount for up to thirty (30) consecutive Business Days in any ninety (90) consecutive day period so long as the aggregate Revolving Advances (including Out-of-Formula Loans) do not exceed the lesser of (1) one hundred and five percent (105%) of the Formula Amount and (2) the Maximum Loan Amount minus the Maximum Undrawn Amount of Letters of Credit minus the outstanding balance of Swing Loans (the “Out-of-Formula Loans”). If Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, the Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-Formula Loans in accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, 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”, “Eligible Insured Foreign Receivables”, “Eligible Un-Insured Foreign Receivables”, “Eligible Off-load Receivables”, “Eligible Inventory”, “Eligible In-Transit Inventory”, “Eligible On-Track Inventory”, “Eligible In-Tank Inventory” or “Eligible Stored Natural Gas 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 five percent (5%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any Out-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), Agent may elect in its discretion to fund such Out-of-Formula Loans and any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
(f) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by Borrowers and the Lenders, at any time in the Agent’s sole discretion, regardless of (i) the existence of a Default or an Event of Default or termination of the commitments of Lenders to make Revolving Advances hereunder for any reason, or (ii) any other contrary provision of this Agreement, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this AgreementAgreement (the “Protective Advances”); provided, that the Protective Advances made hereunder shall not exceed five percent (5%) of the Maximum Loan Amount and provided further that at any time after giving effect to any such Loans Protective Advances, the outstanding Revolving Advances, Swing Loans and Maximum Undrawn Amount of all outstanding Letters of Credit do not exceed $2,000,000the Maximum Loan Amount. The Lenders holding the Revolving Commitments shall be obligated to fund such Protective Advances and effect a settlement with Agent therefore upon demand of Agent in accordance with their respective Revolving Commitment Percentages. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(f), any such Protective Advances funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding a Revolving Commitment under this Agreement and the Other Documents with respect to such Revolving Advances.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Green Plains Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach Borrower, Agent and each Lender and supersedes supersede all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) increase the Advance Rate above the Advance Rate in effect on the Closing Date.
(vii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount ( the “Overadvance Threshold Amount”) by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Enservco Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBxxxxxxx’s, Agent’s and each LenderLxxxxx’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 Loan Party Bxxxxxxx acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunderhereunder (excluding any mandatory prepayment), or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty forty-five (45) days following such LenderLxxxxx’s denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) the existence of a Default or an Event of Default that is continuing, (b) that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied or (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, Agent is hereby authorized by the Loan Parties Bxxxxxxx and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Perma Fix Environmental Services Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Image Entertainment Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the any Term Notes, Note or the due date for any amount payable hereunder, or decrease the principal of or the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b)16.2(b) or any provision of this Agreement providing for consent or other action by all Lenders;
(iv) release all amend, modify, or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreementeliminate Section 11.5;
(v) materially amend, modify, or eliminate Section 14.13;
(vi) other than as permitted by Section 14.13, release Agent’s Lien in and to any of the Collateral; or
(vii) change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower Elm Park Capital Management may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) or Term Loan to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower Elm Park Capital Management elects to require any Lender to assign its interest to GC-Cap or its Affiliates another Lender or to the Designated Lender, Agent Elm Park Capital Management will so notify such Lender in writing within forty five (45) 45 days following such Lender’s denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) another Lender or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) such other Lender or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Empeiria Acquisition Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter or hereafter made shall have no force and effect unless in writing, signed and executed by the Loan Partiesparty or parties making such representations, Agent’s and each Lender’s respective officerswarranties or guaranties. 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any LenderMaximum Revolving Loan Commitment;
(ii) increase any of the Revolving Advance Rates to in excess of (x) 85% with respect to the Receivables Advance Rate and (y) 60% with respect to the Inventory Advance Rate and Agent acknowledges that the limitations contained in this Section 15(b)(ii) shall apply to Section 2.1(b) hereof;
(iii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iiiiv) release any of the Collateral (other than permitted hereunder);
(v) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);; or
(ivvi) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender of Lenders and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Fonda Group Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 30 consecutive Business Days or exceed 105% of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) 45 days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed an amount equal to the sum of (i) the Formula Amount minus (ii) the amount of minimum Undrawn Availability required by Section 8.1(bb) hereof at such time (such sum, the "Overadvance Threshold Amount") by up to 105% of the Overadvance Threshold Amount for up to 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 Overadvance Threshold 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 or Overadvance Threshold Amount by more than 5%, Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; providedPROVIDED, that THAT at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000105% of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Waxman Industries Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower thereunder or the conditions, provisions or terms thereof or of 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement, including Section 7.1 hereof) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$250,000;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. 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 five (5) 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 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Agent 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrowing Agent's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or any of the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$500,000;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or;
(vi) release increase the Maximum Revolving Advance Amount or permit any Guarantor from its obligations under its Guaranty other 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 sixty (60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount;
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) days of delivery of such request, such Lender shall be deemed to have consented to 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Pietrafesa Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Maximum Revolving Advance Amount or the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement Agreement) having an aggregate value in excess of $1,000,000, or, except in mergers, consolidations, sales and in connection with a other dispositions of any Borrower permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;under Section 7.1 hereof, release such Borrower from its Obligations hereunder.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 in connection with a permitted transfer thirty (30) consecutive Business Days or sale thereof exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Inventory Advance Rate or the Cash on Deposit Advance Rate. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 not 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 interest, fees and fees other amounts due such LenderLender hereunder, which interest interest, fees and fees other amounts shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (5%) 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 "Eligible Inventory" 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 addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and five percent (105%) of the Formula Amount".
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Lesco Inc/Oh)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) increase the Maximum Revolving Advance Amount;
(iii) extend the maturity of the Term Notes, any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially release any Collateral during any calendar year having an aggregate value in excess of $250,000; or
(vi) change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (PDS Financial Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 (30) consecutive Business Days or exceed one hundred five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. 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 five (5) 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 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent.
(a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to thirty (30) consecutive Business Days (the "Out-of-Formula Loans"). The If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section
(a) For purposes of this paragraph, 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 use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Small World Kids Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and 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 chargedwriting and in accordance with this Agreement. Each Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without shall be effective if the consent effect would: ChangePro Comparison of all Lenders:ABL and PNC - Exhibit A to Third Amendment 10/3/2016
(i) except in connection with any increase pursuant to Section 2.24 hereof, increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender or the Maximum Revolving Advance Amount unless consented to in writing by each Lender;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders hereunder pursuant to this Agreement, in each case, unless consented to in writing by each Lender;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b)16.2(b) unless consented to in writing by each Lender;
(iv) release all or substantially all of the (i) any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection excess of $1,000,000 or (ii) any Guarantor (other than in accordance with a permitted transfer or sale thereofthe provisions of this Agreement) or as required unless consented to in writing by the terms of the Intercreditor Agreementeach Lender;
(v) materially change the rights and duties of Agent unless consented to in writing by the Required Lenders and Agent;
(provided Agent’s consent is obtained)vi) 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 unless consented to in writing by each Lender; or
(vivii) release any Guarantor from its obligations under its Guaranty other than increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date unless consented to in writing by each Lender. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denieddenied or such Lender does not respond or reply to Agent within five (5) Business Days of delivery of such request, then Agent or Borrower mayPNC shall, at its optionoption or at the request of the Borrowing Agent, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower elects to require PNC requires any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The ChangePro Comparison of ABL and PNC - Exhibit A to Third Amendment 10/3/2016 Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent determines in its sole and absolute discretion to permit such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation continuance of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Keane Group, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Revolving Advance Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor AgreementOne Million Dollars ($1,000,000);
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its optionoption and so long as no Default on Event of Default is then continuing with the prior consent of Borrowing Agent, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed an amount equal to the Formula Amount at such time by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Revolving Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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,” “Eligible Unbilled Receivables” or “Eligible Finished Goods 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Emtec Inc/Nj)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount,
(ii) extend the maturity of the Term Notes, any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;,
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);,
(iv) release releasing all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;Collateral,
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or,
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount, or
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such Lender shall not respond or reply to Agent in writing within five (5) 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Zanett Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and 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 chargedcharged (subject to the other provisions of this Section 17.2). Each Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, or Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b17.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 Lenders or 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar Dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b17.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by excess of $1,000,000 or, subsequent to the terms of the Intercreditor Agreement;Closing Date, release any Loan Party.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder plus the then outstanding Swingline Advances would exceed (1) the Formula Amount for more than thirty (30) consecutive Business Days, (2) one hundred and five percent (105%) of the Formula Amount or (3) the Maximum Revolving Advance Amount.
(vii) increase the Advance Rates above the Advance Rates in connection effect on the Closing Date.
(viii) alter, amend or modify the provisions of Section 7.23.
(c) The rights and duties of Agent and the Swingline Lender may only be modified with a permitted transfer or sale thereof the written consent of Agent and the Swingline Lender as the case may be. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In Notwithstanding (a) the event that Agent requests the consent existence of a Lender pursuant to 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 (c) any other provision of this Section 15.2 and such consent is deniedAgreement, then Agent or Borrower may, at its optiondiscretion and without the consent of the Required Lenders, require such Lender voluntarily permit the outstanding Revolving Advances at any time to assign its interest exceed one hundred percent (100%) of the Formula Amount for up to thirty (30) consecutive Business Days, whether with respect to Revolving Advances made to US Borrowers, to Foreign Borrowers or to Borrowers in the Loans aggregate, but not in excess of one hundred and five percent (105%) of the Formula Amount, nor in any event in excess of the Maximum Revolving Advance Amount. For purposes of the preceding sentence, the discretion granted to GC-Cap and/or its Affiliates (with Agent’s consent) or Agent hereunder shall not preclude involuntary overadvances that may result from time to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal time due to the then fact that the Formula Amount was unintentionally exceeded for any reason, including, but not limited to, Collateral previously deemed to be “Eligible US Receivables” or “Eligible Foreign Receivables” becomes ineligible, collections of Receivables applied to reduce outstanding principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerRevolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent or Borrower elects involuntarily permits the outstanding Revolving Advances to require any Lender exceed the Formula Amount by more than five percent (5%), whether with respect to assign its interest Revolving Advances made to GC-Cap or its Affiliates US Borrowers, to Foreign Borrowers or to Borrowers in the Designated Lenderaggregate, Agent will so notify shall use its efforts to have the applicable Borrowing Group decrease such Lender excess in writing within forty five 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (45and not in substitution of) days following such Lender’s denialthe discretionary Revolving Advances permitted above in this Section 17.2, and such Lender will assign its interest to GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the applicable Borrowing Group pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and five percent (105%) of the Formula Amount with respect to US Borrowers, to Foreign Borrowers or to Borrowers in the aggregate.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the among each Loan PartiesParty, each Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Parties', Agent’s Agents' and each Lender’s '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 Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Collateral Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan Parties, for the purpose of adding or deleting any provisions provisions, amending any provision, consenting to non-compliance with any provision or otherwise changing, varying or waiving in any manner the rights of Lenders, Collateral Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;, the Maximum Revolving Advance Amount or the Maximum Loan Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Loan Parties to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all any substantial portion of the Collateral (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;).
(v) materially change the rights and duties of Agent (provided Collateral Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 105% of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Collateral Agent and all future holders of the Obligations. In the case of any waiver, the Loan Parties, Collateral 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. In the event that Collateral Agent requests the consent of a Lender pursuant to this Section 15.2 and such Lender shall not respond or reply to Collateral Agent in writing within five (5) 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 Collateral Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower M&T Bank may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) M&T Bank or to another Lender or to any other Person designated by the Collateral 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 BorrowerLoan Parties. In the event Agent or Borrower M&T Bank elects to require any Lender to assign its interest to GC-Cap or its Affiliates M&T Bank or to the Designated Lender, Agent M&T Bank will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) M&T Bank or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) M&T Bank or the Designated Lender, as appropriate, and Collateral Agent.
(a) whether there exists 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 (c) any other provision of this Agreement, Collateral Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to 5.0% of the Formula Amount for up to sixty (60) consecutive Business Days (the "Out-of-Formula Loans"). The If Collateral Agent is willing in its sole and absolute discretion to permit such Out-of-Formula Loans, such Out-of-Formula Loans shall be
(a) For purposes of this paragraph, the discretion granted to Collateral 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 Collateral Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than 5.0%, Collateral Agent shall use its efforts to have Loan Parties 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 Collateral Agent has determined the existence of involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, Collateral Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Collateral Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which Collateral Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Loan Parties pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed 105% of the Formula Amount. Upon the written request of Borrower Agent, Collateral Agent, so long as no Event of Default is then outstanding, shall have the option (without any duty or obligation of any kind) to increase the Maximum Revolving Advance Amount, provided, however, that (i) such increase, together with any previous increases pursuant to this clause, shall not raise the Maximum Revolving Advance Amount in an amount greater than $2,000,0003,000,000, (ii) no Lender's Commitment Percentage of the Maximum Revolving Advance Amount or the maximum amount such Lender is obligated to loan to Borrowers hereunder shall be increased without such Lender's written consent, (iii) only an existing Lender may participate in such increase and (iv) upon consummation of such modification Collateral Agent shall forward to all Lenders a revised list of the Commitment Percentages reflecting such changes in the Maximum Revolving Advance Amount.
Appears in 1 contract
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the each Loan Parties Party may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 the any Loan Parties Party 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) i. increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) . extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower any Loan Party to Lenders pursuant to this Agreement;.
(iii) . alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) . release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially v. change the rights and duties of Agent Agent.
vi. 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 (provided Agent’s consent is obtained); or60) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(vi) vii. increase the Advance Rates above the Advance Rates in effect on the Closing Date.
viii. release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the each Loan PartiesParty party thereto, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the sum of the outstanding Revolving Advances and the Maximum Undrawn Amount at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”), provided that such outstanding Advances do not exceed the Maximum Revolving Advance Amount. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 sum of the outstanding Revolving Advances and the Maximum Undrawn Amount to exceed the Formula Amount by more than ten percent (10%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 15.2, the Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances (such Revolving Advances being referred to Borrower as “Agent Advances”) to Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to any Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (TCP International Holdings Ltd.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach Note Party, Agent and each Lender Purchaser and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by each of the Loan PartiesIssuer’s, Agent’s and each LenderPurchaser’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 chargedwriting and in accordance with this Agreement. Each Loan Note Party acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other the other Note Documents and is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Lenders, Purchasers (or the Agent with the consent in writing of the Required Lenders, Purchasers) and the Loan Parties Issuer may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other other Note Documents executed by the Loan Note Parties, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lendersthe Purchasers, Agent or the Loan Note 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 shall, without shall be effective if the consent of all Lenderseffect would:
(i) increase the Commitment Percentage or the maximum dollar commitment of any LenderPurchaser unless consented to in writing by such Purchaser;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable hereunder or under any other Note Document, in each case, unless consented to in writing by Borrower to Lenders pursuant to this Agreementeach Purchaser directly and adversely affected thereby;
(iii) alter the definition of the term Required Lenders Purchasers or alter, amend or modify this Section 15.2(b)16.2(b) unless consented to in writing by each Purchaser;
(iv) in each case, other than in connection with a transaction permitted under Section 7.1, (i) release all or substantially all of the Collateral in any transaction or series of related transactions, unless consented to in writing by each Purchaser or (other than in accordance with the terms of this Agreement and in connection with a permitted transfer ii) release all or sale thereof) or as required by the terms substantially all of the Intercreditor Agreementaggregate value of the Guarantee, unless consented to in writing by each Purchaser;
(v) materially change the rights and duties of Agent (provided the Agent’s consent is obtained), or adversely affect the rights, duties, liabilities or indemnities of the Agent, unless consented to in writing by the Required Purchasers and Agent; or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof 60358086_160358086_13 Any such supplemental agreement shall apply equally to each Lender Purchaser and shall be binding upon the Loan Note Parties, Lenders the Purchasers and Agent and all future holders of the Obligations. In the case of any waiver, the Loan Note Parties, Agent and Lenders Purchasers 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. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers or each affected Purchaser may be effected with the consent of the applicable Purchasers other than Defaulting Purchasers), except that (x) the Commitment of any such Defaulting Purchaser may not be increased or extended without the consent of such Purchaser, (y) any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser that by its terms materially and adversely affects any Defaulting Purchaser to a greater extent than any other affected Purchaser shall require the consent of such Defaulting Purchaser and (x) the consent of any Defaulting Purchaser shall be required in respect of any amendments referred to in clauses (i) through (iii) of Section 16.2. In the event that Agent requests (i) the Issuer has requested that the Purchasers consent to a departure or waiver of a Lender pursuant any provisions of the Note Documents or agree to this Section 15.2 any amendment thereto, (ii) the consent, waiver or amendment in question requires the agreement of all the Purchasers and (iii) the Required Purchasers have agreed to such consent is deniedconsent, waiver or amendment, then Agent or Borrower with respect to any Purchaser that has not so consented (such Purchaser, a “Non-Consenting Purchaser”), the Issuer may, at its optionsole expense and effort, upon notice to such Non-Consenting Purchaser and the Agent, require such Lender Non-Consenting Purchaser to assign sell, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.3(c)), all of its interest in interests, rights and obligations with respect to the Loans Notes or Commitments that is the subject of the related consent, waiver and amendment and the related Note Documents to GC-Cap and/or its Affiliates one or more existing Purchasers or new Purchasers eligible under Section 16.3(c) (with Agent’s consent) or to another Lender or to any other Person designated by provided that neither the Agent nor any Purchaser shall have any obligation to the Issuer to find a replacement Purchaser or other such Person) that shall acquire such obligations (the “Designated Lender”any of which assignees may be another Purchaser, if a Purchaser accepts such assignment), for a price provided that (1) such sale must comply with the provisions of Section 16.3(c) and (2) such Non-Consenting Purchaser shall have received payment of an amount equal to the then applicable outstanding principal of its Notes, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Note Documents (including the full amount thereof plus of the Prepayment Premium, if any, under Section 2.4(b)) from the assignee (to the extent of such outstanding principal and accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliatesfees) or the Designated Lender no later than five Issuer (5) days following receipt to the extent amounts are due and owing to the Non-Consenting Purchaser in excess of amounts due from the assignee). A Non-Consenting Purchaser shall not be required to consummate any such notice sale or delegation if, prior thereto, as a result of a waiver by such Non-Consenting Purchaser or otherwise, the circumstances entitling the Issuer to require such sale and delegation cease to apply. If any Non-Consenting Purchaser shall refuse or fail to execute and deliver any Assignment and Assumption required pursuant to an Assignment Agreement executed by such Lender, GC-Cap Section 16.3 within ten (or its Affiliate10) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized Business Days of any 60358086_160358086_13 request therefor by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, Issuer or any portion thereofPurchaser, (b) the Non-Consenting Purchaser shall automatically be deemed to enhance the likelihood of, or maximize the amount of, repayment of the Loans have executed and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any delivered such Loans the outstanding Loans do not exceed $2,000,000Assignment and Assumption.
Appears in 1 contract
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage Percentage, Maximum Revolving Advance Amount or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Revolving Credit Notes or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) permit any Revolving Advance to be made if after giving effect thereto (aa) the total of Export-Related Revolving Advances outstanding hereunder would exceed the Export-Related Formula Amount for more than thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Export-Related Formula Amount or (bb) the total of Non-Guaranteed Revolving Advances outstanding hereunder would exceed the Non-Guaranteed Formula Amount for more than thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) the Non-Guaranteed Formula Amount.
(vii) increase the Non-EXIM Receivables Advance Rate or the Advance Rates above the rates in effect on the Closing Date.
(viii) release of any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof guaranties. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is deniedLender shall not respond or reply to Agent in writing within ten (10) days of delivery of such request, then Agent or Borrower may, at its option, require such Lender shall be deemed to assign its interest in have disapproved of such matter that was the Loans subject of the request. Notwithstanding the foregoing, Agent may voluntarily permit the outstanding Export-Related Revolving Advances at any time to GCexceed the Export-Cap and/or its Affiliates Related Formula Amount by up to one hundred and five percent (with Agent’s consent105%) or of the Export-Related Formula Amount, provided that (i) the aggregate amount of any such permitted overadvance (each, a "Permitted Overadvance") does not exceed five percent (5%) of the Maximum Export-Related Revolving Advance Amount, (ii) the aggregate amount of all Export-Related Revolving Advances including Permitted Overadvances does not exceed the Maximum Export-Related Revolving Advance Amount, and (iii) such Permitted Overadvances are not outstanding for more than ninety (90) consecutive days. For purposes of the preceding sentence, the discretion granted to another Lender or Agent hereunder shall not preclude involuntary overadvances that may result from time to any other Person designated by the Agent (the “Designated Lender”), for a price equal time due to the then fact that the Export-Related 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 principal amount thereof plus accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerRevolving Advances are thereafter returned for insufficient funds or overadvances are made to protect or preserve the Collateral. In the event Agent or Borrower elects involuntarily permits the outstanding Export-Related Revolving Advances to require any Lender to assign its interest to GCexceed the Export-Cap or its Affiliates or to the Designated LenderRelated Formula Amount by more than five percent (5%), Agent will so notify shall endeavor to have Borrower decrease such Lender excess in writing within forty five (45) days following as expeditious a manner as is practicable under the circumstances and not inconsistent with the reason for such Lender’s denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000excess.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Robotic Vision Systems Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower thereunder or the conditions, provisions or terms thereof or for waiving any Event of Default thereunder, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall, (x) without the consent of all LendersLenders affected thereby:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b) (including the paragraphs that follow in this Section 16.2);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed (A) the Formula Amount for more than thirty (30) consecutive Business Days or (B) one hundred and five percent (105%) of the Formula Amount or (C) the sum of the Maximum Revolving Advance Amount minus the aggregate amount of all outstanding Swing Loans, minus the Maximum Undrawn Amount of all outstanding Letters of Credit;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release Borrower or any Guarantor from its obligations under its Guaranty material Guarantor. or (y) amend, modify or waive any provision of Section 2.26 or any other than in connection with a permitted transfer or sale thereof provision affecting Swing Loans without the written consent of PNC. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from Borrower. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount hereof at such time by up to five percent (5%) of the Formula Amount for up to thirty (30) consecutive Business Days (the “Out-of-Formula Loans”); provided, that, such outstanding Advances do not exceed the sum of the Maximum Revolving Advance Amount minus the aggregate amount of all outstanding Swing Loans, minus the Maximum Undrawn Amount of all outstanding Letters of Credit. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 Rig Fleet Equipment,” as applicable, becomes ineligible, collections of Receivables applied to reduce outstanding Revolving Advances and Swing Loans 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 five percent (5%), Agent shall use its efforts to have Borrower 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent and PNC with respect to Swing Loans is hereby authorized by the Loan Parties Borrower and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Advances and/or Swing Loans to Borrower on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and five percent (105%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Union Drilling Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach Borrower, Agent and each Lender and supersedes all prior agreements and understandings, written or oral, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any LenderLender or the Maximum Loan Amount;
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement$1,000,000;
(v) materially change the rights and duties of Agent Agent;
(provided Agent’s consent is obtained)vi) 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;
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date; or
(viviii) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Guarantor. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to ten percent (10%) of the Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”) whether with respect to Revolving Advances made to US Borrowers, to Canadian Borrowers or to Borrowers in the aggregate. If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 “Eligible Canadian Inventory,” “Eligible US Inventory,” “Eligible US Receivables,” or “Eligible Canadian Receivables,” 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%), whether with respect to Revolving Advances made to US Borrowers, to Canadian Borrower or to Borrowers in the aggregate, Agent shall use its efforts to have the applicable Borrowing Group 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower the applicable Borrowing Group pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount with respect to US Borrowers, to Canadian Borrower or to Borrowers in the aggregate.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (SMTC Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Revolving Credit Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$100,000.00.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) permit any Revolving Advance to be made if after giving effect thereto the total of Revolving Advances and Letters of Credit 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.
(vii) increase the Advance Rates above the Advance Rates in effect on the Closing Date.
(viii) release any Guarantor from its obligations under its Guaranty Borrower or other than in connection with a permitted transfer or sale thereof obligor for any of the Obligations. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Notwithstanding (a) 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 (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent 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 sixty (60) consecutive Business Days to: (a) preserve or protect the Collateral or any portion thereof, (b) enhance the likelihood of, or maximize the amount of, repayment of the Advances and other Obligations, or (iii) pay any other amount chargeable to Borrowers pursuant to the terms of this Agreement. In addition, Agent with the consent of the Required Lenders, may 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 sixty (60) consecutive Business Days for any other reason. For purposes of this paragraph, 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 use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and ten percent (110%) of the Formula Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Allied Motion Technologies Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith Other Documents contain the entire understanding between the Loan Partiesamong Borrowers, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereofhereof and thereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Parties, Agent’s and each Lender’s respective officersparty to be charged therewith. 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, dealing or in any manner other than by an agreement in writing, signed by the party to be charged. Each Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of this Agreement and Other Documents and is not BLU-69367_7/ZRM1343/PNC008-129635 012000/11:12 71 relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement.
(b) The Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers thereunder or the conditions, provisions or terms thereof or waiving any Event of Default thereunderDefault, but only to the extent specified in such written agreements; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;).
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other Revolving Advance to be made if after giving effect thereto the total of Revolving Advances plus Letters of Credit 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.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date.
(viii) increase the Maximum Revolving Advance Amount. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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 thereonon such subsequent Event of Default. BLU-69367_7/ZRM1343/PNC008-129635 012000/11:12 72 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 receipt 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 15.2 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the a Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (PNC or its Affiliates) or the such Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (PNC or its Affiliate) or the such Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (HMG Worldwide Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;
(ii) increase the Maximum Loan Amount, the Maximum Revolving Advance Amount or the Maximum Term Loan Amount;
(iii) extend the maturity of any instrument evidencing any of the Term Notes, Obligations or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(ivv) release all or substantially all any Collateral during any calendar year having an aggregate value in excess of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;$100,000; or
(vvi) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof . Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrower, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrower, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Delta Mills Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
: (i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, Lender or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000Maximum Revolving Advance Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Blonder Tongue Laboratories Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not set forth herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and each Lender’s respective officers. Neither this Agreement nor any portion or provisions hereof may be changedamended, modified, amendedchanged, 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. Notwithstanding the foregoing, Agent and Borrowing Agent may modify this Agreement or any of the Other Documents for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Loan Party acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the 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 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Delayed Draw Term Loan Commitment Percentage or the maximum dollar commitment amount of any Lenderthe Delayed Draw Term Loan without the consent of such Lender directly affected thereby;
(ii) extend the maturity Term or the time for payment of principal or interest of the Term Notes, or Loans (excluding the due date for of any amount payable hereundermandatory prepayment of the Loans), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by the Loans or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 hereof (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) alter the definition of the term “Required Lenders Lenders” or alter, amend or modify this Section 15.2(b)16.2(b) without the consent of all Lenders;
(iv) alter, amend or modify the provisions of Section 11.5 hereof without the consent of each Lender directly and adversely affected thereby;
(v) release all or substantially all of the Collateral (other than in accordance with the terms provisions of this Agreement and in connection with a permitted transfer or sale thereofAgreement) or as required by without the terms consent of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained)all Lenders directly affected thereby; or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Borrower without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. .
(d) In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to the (i) then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from Borrowerthe Loan Parties. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The .
(e) Agent is hereby authorized by the Loan Parties and the Lenders, from time to at any time in the Agent’s sole discretion, regardless of (Ai) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bii) at any time that whether any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfiedsatisfied or the Commitments have been terminated for any reason, or (iii) any other contrary provision of this Agreement, to make Loans to Borrower Borrowers on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower the Loan Parties pursuant to the terms of this Agreement; providedAgreement (the “Protective Advances”). Lenders holding the Loans shall be obligated to fund such Protective Advances and effect a settlement with Agent therefor upon demand of Agent in accordance with their respective pro rata share of the outstanding Loans. To the extent any Protective Advances are not actually funded by the other Lenders as provided for in this Section 16.2(e), that at any time after giving effect to any such Protective Advances funded by Agent shall be deemed to be Loans the outstanding Loans do not exceed $2,000,000made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Lender holding Loans.
Appears in 1 contract
Samples: Term Loan Credit and Security Agreement (Quantum Corp /De/)
Entire Understanding. (a) This Agreement and the documents -------------------- executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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; provided, however, that no such supplemental agreement shall, without the -------- ------- consent of all Lenders:
(i) increase the Commitment Percentage or the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b) or Section 2.2(f);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 thirty (30) consecutive Business Days or exceed one hundred and ten percent (110%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 16.2 and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(a) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, satisfied or (c) to pay any other amount chargeable to Borrower pursuant to the terms provision of this Loan Agreement; provided, that Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.to
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Air Methods Corp)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower's, Agent’s 's and each Lender’s '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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Maximum Loan Amount or the Commitment Percentage or the maximum dollar commitment of any Lender;.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b16.2(b);.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$1,000,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) release permit any Guarantor from its obligations under its Guaranty other 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 thirty (30) consecutive Business Days or exceed one hundred and five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in connection with a permitted transfer or sale thereof effect on the Closing Date. Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 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 not 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 Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) 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 be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent PNC will so notify such Lender in writing within forty five (45) days following such Lender’s 's denial, and such Lender will assign its interest to GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent.
(a) 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 (c) any other provision of this Loan Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (5%) of the Formula Amount for up to thirty (30) consecutive Business Days. The 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 addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s 's sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (Bb) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower the Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (ciii) to pay any other amount chargeable to Borrower the Borrowers pursuant to the terms of this Agreement; providedPROVIDED, that THAT at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000one hundred and five percent (105%) of the Formula Amount."
5. Annex B and Annex C to Schedule 4.5 to the Agreement are hereby amended and restated as set forth in Annex B and Annex C attached to this Amendment.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Lesco Inc/Oh)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed and executed by the Loan Partiesparty or parties making such representations, Agent’s and each Lender’s respective officerswarranties or guaranties. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled canceled or terminated orally or 82 84 by any course of dealing, or in any manner other than by an agreement in writing, signed by the party to be charged. Each Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement Agreement, the Notes or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties 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; provided, however, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Maximum Loan Amount or increase the Commitment Percentage or the maximum dollar commitment of any Lender,
(ii) increase the Receivables Advance Rate in excess of 95%, increase the Antenna Inventory Advance Rate in excess of 60% or increase the Battery Advance Rate in excess of 50% (this provision shall apply to actions taken by Agent in accordance with Section 2. 1 (b));
(iiiii) extend the maturity of the Term Notes, any Note or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee or principal payment payable by Borrower to Lenders pursuant to this Agreement;
(iiiiv) alter the definition of the term Required Lenders or alter, amend or modify Section 2.5, Section 15.3(a) or this Section 15.2(b);
(ivv) release all or substantially all any Collateral during any calendar year having an aggregate value in excess of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement$500,000;
(vvi) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vivii) release voluntarily make any Guarantor from its obligations under its Guaranty other Revolving Advance if after giving effect thereto the total of Revolving Advances outstanding hereunder would exceed the Formula Amount for more than in connection with a permitted transfer sixty (60) consecutive Business Days or sale thereof Any such supplemental agreement shall apply equally to each Lender exceed one hundred and shall be binding upon the Loan Parties, Lenders and Agent and all future holders twenty percent (120%) of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and AgentFormula Amount. The Agent is hereby authorized by foregoing limitation shall not apply to involuntary overadvances that may result from the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent limitations set forth in Section 8.2 hereof have not been satisfiedthis Agreement that were unintentionally exceeded for reasons including, without limitation, Collateral believed to make Loans to Borrower on behalf of be eligible in fact being or becoming ineligible or the Lenders which Agent, in its reasonable business judgment, deems necessary or desirable (a) to preserve or protect the Collateral, or any portion thereof, (b) to enhance the likelihood return of, or maximize the amount of, repayment of the Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Centurion Wireless Technologies Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan Partieseach 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 guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan Partieseach Borrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrowers 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 shall, without the consent of all Lenders:
(i) increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;Lender or the Maximum Revolving Advance Amount.
(ii) extend the maturity of the Term Notes, any Note or the due date for any amount of interest, fees, or principal payable hereunderhereunder (other than mandatory prepayments), or decrease the rate of interest or reduce any fee payable by Borrower Borrowers to Lenders pursuant to this Agreement;.
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);16.2.
(iv) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by the terms excess of the Intercreditor Agreement;$250,000.
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or.
(vi) 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 five percent (105%) of the Formula Amount.
(vii) increase the Advance Rates above the Advance Rates in effect on the Restatement Date.
(viii) release any Borrower or Guarantor from its obligations under its Guaranty (other than in connection accordance with a permitted transfer or sale thereof the provisions of this Agreement). Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, 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 16.2(b) and such consent is denied, then Agent or Borrower PNC may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) PNC or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower PNC elects to require any Lender to assign its interest to GC-Cap or its Affiliates PNC or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) PNC or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) PNC or the Designated Lender, as appropriate, and Agent.
(d) Notwithstanding (a) 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 (c) any other provision of this Agreement, Agent may at its discretion and without the consent of the Required Lenders, voluntarily permit the outstanding Revolving Advances at any time to exceed the Formula Amount by up to five percent (5%) of the Formula Amount for up to sixty (60) consecutive days (the “Out-of-Formula Loans”). The If Agent is willing in its sole and absolute discretion to make such Out-of-Formula Loans, such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Lenders do make Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1(a). For purposes of this paragraph, 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 five percent (5%), Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence.
(e) In addition to (and not in substitution of) the discretionary Revolving Advances permitted above in this Section 16.2, the Agent is hereby authorized by the Loan Parties Borrowers and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans Revolving Advances to Borrower Borrowers on behalf of the Lenders which the Agent, in its reasonable business judgment, deems 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 Loans Advances and other Obligations, or (c) to pay any other amount chargeable to Borrower Borrowers pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans Revolving Advances the outstanding Loans Revolving Advances do not exceed $2,000,000the lesser of: (i) one hundred and five percent (105%) of the Formula Amount, and (ii) the Maximum Revolving Advance Amount.
Appears in 1 contract
Samples: Revolving Credit, Term Loan, Guaranty, and Security Agreement (Rocky Brands, Inc.)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the Loan PartiesBorrower, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the Loan PartiesBorrower’s, Agent’s and 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 Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrower may, subject to the provisions of this Section 15.2(b15.2 (b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrower, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or the Loan Parties Borrower 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 shall, without the consent of all Lenders:
(i) : increase the Commitment Percentage or Percentage, the maximum dollar commitment of any Lender;
(ii) extend the maturity of the Term Notes, Lender or the due date for any amount payable hereunder, or decrease the rate of interest or reduce any fee payable by Borrower to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b);
(iv) release all or substantially all of the Collateral (other than in accordance with the terms of this Agreement and in connection with a permitted transfer or sale thereof) or as required by the terms of the Intercreditor Agreement;
(v) materially change the rights and duties of Agent (provided Agent’s consent is obtained); or
(vi) release any Guarantor from its obligations under its Guaranty other than in connection with a permitted transfer or sale thereof Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Maximum Loan Parties, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the 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. In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans to GC-Cap and/or its Affiliates (with Agent’s consent) 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 Borrower. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement executed by such Lender, GC-Cap (or its Affiliate) or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation of a Default or an Event of Default, or (B) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Loans to Borrower on behalf of the Lenders which Agent, in its reasonable business judgment, deems 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 Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Loans the outstanding Loans do not exceed $2,000,000Amount.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Berliner Communications Inc)
Entire Understanding. (a) This Agreement and the documents executed concurrently herewith contain the entire understanding between the each Loan PartiesParty, Agent and each Lender and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in writing, signed by the each Loan PartiesParty’s, Agent’s and 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. Notwithstanding the foregoing, Agent may modify this Agreement for the purposes of completing missing content or correcting erroneous content of an administrative nature, without the need for a written amendment, provided that the Agent shall send a copy of any such modification to the Borrowers and each Lender (which copy may be provided by electronic mail). Each Loan Party Borrower acknowledges that it has been advised by counsel in connection with the execution of 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 Required Lenders, Agent with the consent in writing of the Required Lenders, and the Loan Parties Borrowers may, subject to the provisions of this Section 15.2(b16.2(b), from time to time enter into written supplemental agreements to this Agreement or the Other Documents executed by the Loan PartiesBorrowers, for the purpose of adding or deleting any provisions or otherwise changing, varying or waiving in any manner the rights of Lenders, Agent or 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, that no such supplemental agreement shall, without the consent of all Lenders:
(i) increase the Revolving Commitment Percentage Percentage, the Maximum Revolving Advance Amount or the maximum dollar commitment Term Loan Commitment Percentage, as applicable, of any Lender without the consent of such Lender directly affected thereby (it being understood and agreed that a waiver of any condition precedent set forth in Section 8.01 or of any Default or Event of Default is not considered an extension or increase in the Revolving Commitment Percentage, Maximum Revolving Advance Amount or the Term Loan Commitment Percentage) of any Lender;
(ii) whether or not any Advances are outstanding, extend the maturity of Term Loan Maturity Date, extend the Term Notes, or the time for payment of principal or interest of any Advance (excluding the due date for of any amount payable hereundermandatory prepayment of an Advance), or decrease any fee payable to any Lender, or reduce the principal amount of or the rate of interest borne by any Advances or reduce any fee payable to any Lender, without the consent of each Lender directly affected thereby (except that Required Lenders may elect to waive or rescind any imposition of the Default Rate under Section 3.1 or of default rates of Letter of Credit fees under Section 3.2 (unless imposed by Borrower to Lenders pursuant to this AgreementAgent));
(iii) except in connection with any increase pursuant to Section 2.24 hereof, increase the Maximum Revolving Advance Amount without the consent of all Lenders;
(iv) alter the definition of the term Required Lenders or alter, amend or modify this Section 15.2(b)16.2(b) without the consent of all Lenders;
(ivv) alter, amend or modify the provisions of Section 11.5 without the consent of all Lenders;
(vi) release all or substantially all of the any Collateral during any calendar year (other than in accordance with the terms provisions of this Agreement and Agreement) having an aggregate value in connection with a permitted transfer or sale thereof) or as required by excess of $1,000,000 without the terms consent of the Intercreditor Agreementall Lenders;
(vvii) materially change the rights and duties of Agent without the consent of all Lenders;
(provided Agent’s viii) subject to clause (e) below, 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 without the consent is obtained)of all Lenders;
(ix) increase the Advance Rates above the Advance Rates in effect on the Closing Date without the consent of all Lenders; or
(vix) release any Guarantor from its obligations under its Guaranty or Borrower (other than in connection accordance with a permitted transfer or sale thereof the provisions of this Agreement) without the consent of all Lenders.
(c) Any such supplemental agreement shall apply equally to each Lender and shall be binding upon the Loan PartiesBorrowers, Guarantors, Lenders and Agent and all future holders of the Obligations. In the case of any waiver, the Loan PartiesBorrowers, Guarantors, 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. .
(d) In the event that Agent requests the consent of a Lender pursuant to this Section 15.2 16.2 and such consent is denied, then Agent or Borrower may, at its option, require such Lender to assign its interest in the Loans Advances to GC-Cap and/or its Affiliates (with Agent’s consent) Agent or to another Lender or to any other Person designated by the Agent (the “Designated Lender”), for a price equal to (i) the then outstanding principal amount thereof plus (ii) accrued and unpaid interest (including any accrued PIK Interest) and fees due such Lender, which interest and fees shall be paid when collected from BorrowerBorrowers. In the event Agent or Borrower elects to require any Lender to assign its interest to GC-Cap or its Affiliates Agent or to the Designated Lender, Agent 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 GC-Cap (or its Affiliates) Agent or the Designated Lender no later than five (5) days following receipt of such notice pursuant to an Assignment Agreement a Commitment Transfer Supplement executed by such Lender, GC-Cap (or its Affiliate) Agent or the Designated Lender, as appropriate, and Agent. The Agent is hereby authorized by .
(e) Notwithstanding (i) the Loan Parties and the Lenders, from time to time in the Agent’s sole discretion, (A) after the occurrence and during the continuation existence of a Default or an Event of Default, or (Bii) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, satisfied or the commitments of Lenders to make Loans Revolving Advances hereunder have been terminated for any reason, or (iii) any other contrary provision of this Agreement, Agent may at its discretion and without the consent of any Lender, voluntarily permit the outstanding Revolving Advances at any time to Borrower on behalf exceed an amount equal to Formula Amount at such time by up to ten percent (10%) of the Lenders which Agent, Formula Amount for up to sixty (60) consecutive Business Days (the “Out-of-Formula Loans”). If Agent is willing in its reasonable business judgmentsole and absolute discretion to permit such Out-of-Formula Loans, deems necessary or desirable Lenders holding the Revolving Commitments shall be obligated to fund such Out-of-Formula Loans in accordance with their respective Revolving Commitment Percentages, and such Out-of-Formula Loans shall be payable on demand and shall bear interest at the Default Rate for Revolving Advances consisting of Domestic Rate Loans; provided that, if Agent does permit Out-of-Formula Loans, neither Agent nor Lenders shall be deemed thereby to have changed the limits of Section 2.1
(a) nor shall any Lender be obligated to fund Revolving Advances in excess of its Revolving Commitment Amount. For purposes of this paragraph, 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 “Eligible Receivables” 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 or protect the Collateral. In the event Agent involuntarily permits the outstanding Revolving Advances to exceed the Formula Amount by more than ten percent (10%), or Agent shall use its efforts to have Borrowers 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 involuntary overadvances shall be deemed to be involuntary overadvances and shall be decreased in accordance with the preceding sentence. To the extent any portion thereofOut-of-Formula Loans are not actually funded by the other Lenders as provided for in this Section 16.2(e), (b) Agent may elect in its discretion to enhance the likelihood fund such Out-of, or maximize the amount of, repayment of the -Formula Loans and other Obligations, or (c) to pay any other amount chargeable to Borrower pursuant to the terms of this Agreement; provided, that at any time after giving effect to any such Out-of-Formula Loans so funded by Agent shall be deemed to be Revolving Advances made by and owing to Agent, and Agent shall be entitled to all rights (including accrual of interest) and remedies of a Revolving Lenders under this Agreement and the outstanding Loans do not exceed $2,000,000Other Documents with respect to such Revolving Advances.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Universal Logistics Holdings, Inc.)
