Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances. (b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall (i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i), (ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender), (iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby, (iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby, (v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or (vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender. (c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law. (d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. (e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing. (f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 3 contracts
Samples: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Waivers; Amendment. (a) 3. No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(ba) Except as provided in Section 2.20 with respect Subject to a New Term Loan Amendmentthe terms of the Intercreditor Agreement, neither this Agreement nor any the other Loan Document Documents (other than the Fee Letter) nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case or Administrative Agent on behalf of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders); provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any interest on or any fees (including any prepayment fee or premium) payable with respect to any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, any Loan on or any L/C Disbursementfees (including any prepayment fee or premium) payable with respect to any Loan, without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase or extend the Revolving Credit Facility Commitment (if any) or decrease or extend the date for payment of any Lender fees (including any prepayment fee or decrease the Commitment Fees or L/C Participation Fees or other fees premium) of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend amend or waive any Term Loan Installment Date modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(i) or reduce the amount due on any Term Loan Installment Date provisions of this Section or extend any date on which payment release all or substantially all of interest on any Loan the value of the Guarantees or any L/C Disbursement all or any Fees is due, substantially all of the Collateral without the prior written consent of each Lender adversely affected thereby,
(other than in connection with a transaction permitted by Section 6.05 or as provided in the Intercreditor Agreement), (iv) amend or modify [reserved], (v) reduce the provisions percentage contained in the definition of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
Lender, (vvi) amend impose any additional restriction on any Lender's ability to assign any of its rights or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, obligations without the prior written consent of each Lender adversely affected thereby such Lender, or (it being understood that, with the consent vii) subordinate (x) payment of any of the Required LendersObligations to any other Indebtedness, additional extensions of credit pursuant to this Agreement may be included or (y) the Lien created under the Loan Documents in the determination respect of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release Obligations to any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unlessLien in respect of any other Indebtedness, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests each of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreementsubclauses (vii)(x) and (vii)(y), without the prior written consent of each Lender; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicableCollateral Agent. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 The terms and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit provisions of the Secured PartiesFee Letter may not be waived, amended or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with modified without the written consent of the Administrative Agent, the Company Agent and the Borrower (but any such waiver, amendment or modification shall not require the written consent of any of the Lenders).
(b) Notwithstanding anything in clause (b) or otherwise herein to the contrary, (i) any amendment or modification that would extend the final maturity date of the Loans of any Lender, in each case, with such Lender’s prior written consent, and increase the rate of interest and fees payable on the Loans of such Lender shall not require the prior written consent of each Lender, so long as such extension is offered to all Lenders providing the relevant Replacement Term holding such Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with on a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) pro rata basis based on the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life then outstanding pursuant to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and procedures approved by the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility LoansAgent, as applicable and (ii) cure the payment in full of any ambiguityLoans on the applicable final maturity date of such Loans and the payment of interest and fees made on account of the Revolving Credit Facility Commitments and/or Loans of any Lender as required under this Agreement after giving effect to an amendment or other modification described in the preceding clause (i), omissionshall not be deemed to violate Section 2.17 or be an event that would require the purchase of participations pursuant to Section 2.18; provided that, mistakeexcept as expressly set forth in the preceding clause (i), defect no such amendment or inconsistencymodification shall alter the pro rata requirements of Section 2.17.
(c) The Administrative Agent and the Borrower may amend any Loan Document (i) to correct administrative errors or omissions, or to effect administrative changes that are not adverse to any Lender, or (ii) to effect any Conforming Amendment (as defined in the Intercreditor Agreement) in respect of a Subject Term Loan Amendment. . Notwithstanding anything to the extent contrary contained herein, such cure could not reasonably be expected amendment shall become effective without any further consent of any other party to have a material adverse effect on the Lenderssuch Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Medley Management Inc.), Credit Agreement (Medley LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Subject to Section 2.20 with respect to a New Term Loan Amendment2.11(b), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (xA) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders and (yB) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity date of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolver Termination Date, without the prior written consent of each Lender directly and adversely affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement (x) consent of Required Lenders shall not constitute a reduction in the rate of interest be required for purposes of any waiver, amendment or modification contemplated by this clause (i), and (y) that waiver or reduction of a post-default increase in interest shall be effective with the consent of the Required Lenders (and shall not require the consent of each directly and adversely affected Lender),
(ii) increase or the Revolver Commitment of any Lender,
(iii) extend the Revolver Commitment of any Lender or decrease the Commitment Unused Line Fee Rate or Issuing Bank Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender or Issuing Bank, as applicable (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default Default, mandatory prepayments or of a mandatory reduction in the aggregate Revolver Commitments shall not constitute an increase or extension of the Commitments maturity); provided, that consent of Required Lenders shall not be required for any Lender),
waiver, amendment or modification contemplated by this clause (iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby),
(iv) except to the extent necessary to give effect to the express intentions of this Agreement (including Section 9.04), which, in respect of any amendment or modification to effect such express intentions, shall be effective with the consent of the Required Lenders, amend or modify the provisions any provision of Section 2.18(b) or (c) 2.15 of this Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected therebyLender,
(v) amend or modify the provisions of this Section 7.02, Sections 9.08(a), (b) or (c) or reduce the voting percentage set forth in the definition of the terms “Required Lenders” or “Supermajority Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender directly and adversely affected thereby (it being understood that, with the consent of the Required Lenders, that any additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Revolver Commitments are included on the Closing Date), or,
(vi) (x) release all or substantially all the Collateral (it being understood that a transaction permitted under Section 6.05 shall not constitute a release of all or substantially all of the Collateral), or release any Subsidiary all or substantially all of the value of the Guarantees (except as otherwise permitted herein (including in connection with a transaction permitted under Section 6.05) or in the other Loan Party from its Guarantee Documents) under a Collateral Agreementthe Security Documents, unless, in the case of a Subsidiary Loan PartyGuarantor, all or substantially all the Equity Interests of such Subsidiary Loan Party Guarantor is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender or (y) subordinate the Liens of the Administrative Agent under the Security Documents with respect to Collateral at that time included in the Borrowing Base and/or all or substantially all of the Collateral (other than, in respect of the Real Property in accordance with the Intercreditor Agreement upon the effectiveness thereof) or subordinate the Obligations hereunder, without the prior written consent of each Lender,
(vii) without the prior written consent of the Supermajority Lenders, change the definition of the terms “Availability”, or “Borrowing Base” or any component definition used therein (including, without limitation, the definitions of “Eligible Credit Card Receivables,” “Eligible Inventory,” and “Eligible In-Transit Inventory”) if, as a result thereof, the amounts available to be borrowed by the Borrower would be increased; provided further that the foregoing shall not limit the discretion of the Administrative Agent to change, establish or eliminate any Availability Reserve or to add Accounts and Inventory to the Borrowing Base as provided herein, or
(viii) without the prior written consent of the Supermajority Lenders, increase the percentages and advance rates set forth in the term “Borrowing Base” or add any new classes of eligible assets thereto, provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the and Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Revolver Commitments of such Lender may not be increased or extended without the consent of such Lender and (y) the principal and accrued and unpaid interest of such Lender’s Loans shall not be reduced or forgiven without the consent of such Lender.
(c) Without the consent of any Lenderthe Agents or Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawApplicable Law.
(d) Notwithstanding anything to the foregoingcontrary contained in this Section 9.08 or any Loan Document, this Agreement may be amended (i) the Borrower and the Administrative Agent may, without the input or amended and restated) with the written consent of the Required Lendersany other Lender, the Administrative Agent, and the Borrowers (a) effect amendments to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with as may be necessary in the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination reasonable opinion of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to effect the extent necessary to (i) integrate any New Term Commitments provisions of Sections 2.18 or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans9.04(f), as applicable and (ii) if the Administrative Agent and the Borrower have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision and (iii) guarantees, collateral security documents and related documents executed by Holdings or Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, supplemented or waived without the consent of any Lender if such amendment, supplement or waiver is delivered in order to (x) comply with local law or advice of local counsel, (y) cure any ambiguityambiguities, omissionomissions, mistakemistakes or defects or (z) cause such guarantee, defect collateral security document or inconsistency, other document to be consistent with this Agreement and the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersother Loan Documents.
Appears in 2 contracts
Samples: Debtor in Possession Credit Agreement (Tuesday Morning Corp/De), Commitment Letter (Tuesday Morning Corp/De)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Parent, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 9.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Parent, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Sections 2.21, 2.22 and 2.23, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Parent, the Borrowers Borrower and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that that, except as provided in Sections 2.21, 2.22 and 2.23, no such agreement shall:
(i) decrease decrease, forgive, waive or forgive excuse the principal amount of, or any interest on, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender adversely directly affected thereby; , except as provided that any amendment in Section 2.05(c) with respect to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate expiration of interest for purposes Letters of this clause (i),Credit;
(ii) increase or extend the Commitment of any Lender or decrease decrease, waive or excuse the Commitment Fees or L/C Participation Fees or other fees of any Lender Lender, Agent or Issuing Bank without the prior written consent of such Lender Lender, Agent or Issuing Bank (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of principal or interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) 2.18 of this Agreement, Section 5.2 of the Collateral Agreement or (c) any analogous provision of any other Loan Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the Borrower Parties would be increased, or increase any of the percentages set forth in the definition of “Borrowing Base” without the prior written consent of Lenders holding 66 2/3% of the Revolving Facility Commitments and Revolving Loans then outstanding; provided that the foregoing shall not limit the ability of the Administrative Agent to implement, change or eliminate any Reserves in its Reasonable Credit Judgment as permitted hereunder without the prior written consent of any Lenders;
(vi) amend or modify the provisions of this Section 9.08 or the definition of the terms term “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vivii) release all or substantially all a material portion of the Collateral or release any of Parent, the Borrower or any of the other Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan PartyParty (other than the Borrower), all or substantially all the Equity Interests of such Subsidiary Loan Party is are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; or
(viii) increase the aggregate Revolving Facility Commitments, other than as provided further in Section 2.21, without the prior written consent of each Lender; provided that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Administrative Agent or any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, anything in this Agreement may be amended (or amended and restated) with any other Loan Document to the written consent of the Required Lenderscontrary, the Administrative AgentBorrower may enter into Incremental Facility Amendments in accordance with Section 2.21, Refinancing Amendments in accordance with Section 2.22, Extension Amendments in accordance with Section 2.23 and Credit Agreement Refinancing Indebtedness Amendments, and such Incremental Facility Amendments, Refinancing Amendments, Extension Amendments and Credit Agreement Refinancing Indebtedness Amendments shall be effective to amend the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits terms of this Agreement and the other applicable Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees Documents, in respect thereof and (b) each case, without any further action or consent of any other party to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersLoan Document.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable applicable.
(f) Notwithstanding the foregoing, no consent of any Defaulting Lender shall be required other than with respect to any amendment or waiver set forth in clauses (i) through (iv) of Section 9.08(b) that directly and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent adversely affect such cure could not reasonably be expected to have a material adverse effect on the LendersLender.
Appears in 2 contracts
Samples: Credit Agreement (Smart & Final Stores, Inc.), Revolving Credit Agreement (Smart & Final Stores, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata prorata sharing of payments required thereby, without the prior written consent of each Lender adversely affected therebythereby or amend or modify any Loan Table of Contents Document so as to alter the ratable treatment of the Swap Agreement Obligations and the Loan Document Obligations or the definition of “Specified Swap Agreement,” “Swap Agreement Obligations,” “Swap Provider” or “Obligations” (as defined in any Loan Document), in each case in a manner adverse to any Swap Provider with Swap Agreement Obligations then outstanding without the written consent of such Swap Provider,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Third Restatement Effective Date), or,
(vi) release all or substantially all the Collateral or release any of the Borrower or any Subsidiary Loan Party from its Guarantee guarantee under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement or such Subsidiary Loan Party is designated as an Unrestricted Subsidiary in accordance with the provisions of this Agreement, without the prior written consent of each LenderLender and each Swap Provider with Swap Agreement Obligations then outstanding; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent or the Joint Lead Arrangers or any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company The Lenders and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable Issuing Bank hereby consent to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoingamendments, technical and conforming restatements or other modifications to the Loan Documents may be made with the consent Security Documents, including, without limitation, any release Table of Contents of the Borrowers Liens on any Collateral granted pursuant thereto that constitutes COFACE Collateral, that are reasonably required to provide the lenders under the COFACE Loan a security interest over the COFACE Collateral pursuant to the terms of the Security Documents, and hereby direct the Administrative Agent to and the Administrative Agent hereby agrees to enter into such amendments, restatements or other modifications in form and substance reasonably satisfactory to the extent necessary to (i) integrate Administrative Agent and the Borrower, without any New Term Commitments further consent or New Revolving Facility Commitments on substantially direction from the same basis as Lenders and the Term Loans or Revolving Facility LoansIssuing Bank, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, pursuant to the extent such cure could not reasonably be expected to have a material adverse effect on terms of the LendersSecurity Documents.
Appears in 2 contracts
Samples: Credit Agreement (Hughes Network Systems, LLC), Credit Agreement (Hughes Communications, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the Issuing Bank Required Lenders or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the Issuing Bank Required Lenders and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Administrative Borrower and the Required Lenders Lenders, and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause clauses (b) through (i),) of the definition of “Maturity Date” may be amended or modified with the prior written consent of the Supermajority Lenders;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any LenderLender and that the date set forth in Section 2.01(f)(iii) may be extended with the prior written consent of the Supermajority Lenders),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b2.16(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) amend or modify the provisions of this Section or the definition of the terms term “Required Lenders,” ”, “Majority Supermajority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders or “Supermajority Lenders” on substantially the same basis as the Loans and Commitments are included on the Closing Effective Date), or;
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests value of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, the Guarantees without the prior written consent of each Lender (except in connection with an Acceptable 363 Sale or pursuant to an Acceptable Chapter 11 Plan);
(vii) amend or modify the Superpriority Claim status of the Lenders under the DIP Orders or under any other Loan Documents without the consent of each Lender; provided further that no such agreement shall ;
(viii) amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder Collateral Agent without the prior written consent of the Administrative Agent or the Issuing Bank Collateral Agent, respectively, acting as such such, at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.;
(ix) waive, amend or modify any condition set forth in Section 4.01 or 4.02 without the prior written consent of the Supermajority Lenders; or
(x) waive, amend or modify any of the definitions of “Acceptable 363 Sale”, “Acceptable Chapter 11 Plan”, “Advance Rate” (other than in connection with an Incremental Amendment as set forth in Section 2.06), “Borrowing Base”, “Confirmation Order”, “Final DIP Order”, “Interim DIP Order”, “Prohibited Plan or Sale” or “Remedies Provision” without the prior written consent of the Supermajority Lenders;
(c) Without the consent of any Lender, the Loan Parties Borrowers and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.), Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise provided in Section 2.20 with respect to a New Term Loan Amendmentherein, neither this Agreement nor any other Loan Document nor any provision hereof or thereof hereof, may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or date for the payment of any interest on any Loan, extend the date for payment of any fees or waive or excuse any such payment or any part thereof, decrease the rate of interest on, on any Loan or reduce the amount of any L/C Disbursementfee payable hereunder, without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase amend or extend modify the Commitment pro rata requirements of any Lender Section 2.17, the sharing provisions of Section 2.18, the provisions of Section 9.04(j) or decrease the Commitment Fees provisions of this Section 9.08 or L/C Participation Fees release all or substantially all of the value of the Guarantors (other fees than pursuant to the terms hereof or thereof or in connection with the sale of any Lender such Guarantor in a transaction permitted by Section 6.04) or all or substantially all of the Collateral (or subordinate the Liens in favor of the Collateral Agent on all or substantially all of the Collateral), without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedenteach Lender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or [reserved], (iv) modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(i) without the written consent of such SPC, (v) reduce the amount due percentage contained in the definition of the term “Required Lenders,” or impose additional restrictions on any Term the ability of the Lenders to assign their rights and obligations under the Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueDocuments, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Datedate hereof), or
(vi) release all or substantially all amend the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case definition of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, “Required Lender” without the prior written consent of each LenderLender or (vii) reduce the number or percentage of the Lenders required to consent, approve or otherwise take any action under the Loan Documents without the prior written consent of each Lender affected thereby; provided further provided, further, that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at Collateral Agent; and (B) the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment Borrower and the Administrative Agent may amend or modification authorized by supplement this Section 9.08 Agreement and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without other Loan Documents, without the consent of any Lender, the Loan Parties and the Administrative Agent may in order to (in their respective sole discretionx) cure an obvious error or any error or omission of a technical or immaterial nature, or shall, to the extent required by (y) cause any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents to be consistent with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended or (z) in accordance with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingSection 6.04.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Pyxus International, Inc.), Term Loan Credit Agreement (Pyxus International, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower Borrower, or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party Holdings in any case shall entitle such Person any Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrowers, Holdings and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative AgentAgent and each Loan Party (to the extent such Loan Party is a party thereto), as applicable, and consented to by in each case with the consent of the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any interest on any Loan or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) except as provided in Section 2.24, increase or extend the Commitment or decrease or extend the date for payment of any Lender Fees (or decrease the Commitment Fees or L/C Participation Fees or other fees any prepayment premium set forth in Section 2.12) of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend amend or waive any Term Loan Installment Date modify the pro rata requirements of Section 2.17 or reduce the amount due on any Term Loan Installment Date sharing of payments provisions of Section 2.18 or extend any date on which payment the provisions of interest on any Loan this Section or any L/C Disbursement release all or any Fees is duesubstantially all of the value of the Guarantees under the Security Documents or all or substantially all of the Collateral, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (v) modify the protections afforded to an SPC pursuant to the provisions of Section 2.18(b9.04(i) without the written consent of such SPC or (cvi) reduce the percentage contained in a manner that would by its terms alter the pro rata sharing definition of payments required thereby, the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Term Loan Commitments are included on the Closing Datedate hereof), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at Collateral Agent. Notwithstanding the effective date of such agreementforegoing, as applicable. Each Lender shall any Loan Document may be bound by any waiver, amendment amended or modification authorized by this Section 9.08 and any consent by any Lender modified pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without an agreement or agreements in writing entered into by the Administrative Agent and the Borrowers and each other Loan Party that is a party thereto, without the consent of any Lenderof the Lenders, the Loan Parties and the Administrative Agent may (in their respective sole discretion, if such amendment or shall, modification is beneficial to the extent required by Lenders (or the Lenders holding Loans or Commitments of any Class) and does not adversely affect the rights or obligations of any Lender under any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank any L/C Issuer or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank each L/C Issuer and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Administrative Agent (and consented to by the Required Lenders Lenders), and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementObligation, or extend the stated expiration of any Letter of Credit beyond the applicable Revolving Facility Maturity Date (except as provided in Section 2.05(b)), without the prior written consent of each Lender directly adversely affected therebythereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification); provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood which, notwithstanding the foregoing, such consent of such Lender shall be the only consent required hereunder to make such modification); provided, that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement Obligation or any Fees is due, without the prior written consent of each Lender directly adversely affected therebythereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),
(iv) amend or modify the provisions of Section 2.18(b) 5.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected therebythereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the Subsidiary Loan Party Parties from its their respective Guarantees under the Subsidiary Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan PartyParty (other than the Company), all or substantially all of the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement or the other Loan Documents or such release is otherwise pursuant to the terms of the Collateral Agreement or the Subsidiary Guarantee Agreement, as applicable, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further provided, further, that no such agreement amendment shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, Swingline Lender or the Issuing Bank an L/C Issuer hereunder without the prior written consent of the Administrative Agent Agent, Swingline Lender or the Issuing Bank such L/C Issuer acting as such at the effective date of such agreementamendment, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such Lender.
(c) Without the consent of any LenderLender or L/C Issuer, the Loan Parties and the Administrative Agent or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A) to (i) integrate any New Incremental Term Loan Commitments or New Incremental Revolving Facility Commitments on substantially the same basis in a manner consistent with Section 2.21, including, with respect to Other Revolving Loans or Other Term Loans, as the may be necessary to establish such Incremental Term Loans Loan Commitments or Revolving Facility Loans, as a separate Class or tranche from the existing Term Loan Commitments or Incremental Revolving Facility Commitments, as applicable and or (iiB) to cure any ambiguity, omission, mistake, defect or inconsistency.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be necessary to ensure that all Term Loans established pursuant to Section 2.21 after the Closing Date that will be included in an existing Class of Term Loans outstanding on such date (an “Applicable Date”), when originally made, are included in each Borrowing of outstanding Term Loans of such Class (the “Existing Class Loans”), on a pro rata basis, and/or to ensure that, immediately after giving effect to such new Term Loans (the “New Class Loans” and, together with the Existing Class Loans, the “Class Loans”), each Lender holding Class Loans will be deemed to hold its Pro Rata Share of each Class Loan on the Applicable Date (but without changing the amount of any such Lender’s Term Loans), and each such Lender shall be deemed to have effectuated such assignments as shall be required to ensure the foregoing. The “Pro Rata Share” of any Lender on the Applicable Date is the ratio of (1) the sum of such Lender’s Existing Class Loans immediately prior to the extent Applicable Date plus the amount of New Class Loans made by such cure could not reasonably be expected to have a material adverse effect Lender on the LendersApplicable Date over (2) the aggregate principal amount of all Class Loans on the Applicable Date.
(g) With respect to the incurrence of any secured or unsecured Indebtedness (including any intercreditor agreement relating thereto), the Borrowers may elect (in its discretion, but shall not be obligated) to deliver to the Administrative Agent a certificate of a Responsible Officer at least three Business Days prior to the incurrence thereof (or such shorter time as the Administrative Agent may agree), together with either drafts of the material documentation relating to such Indebtedness or a description of such Indebtedness (including a description of the Liens intended to secure the same or the subordination provisions thereof, as applicable) in reasonably sufficient detail to be able to make the determinations referred to in this paragraph, which certificate shall either, at the Borrowers’ election, (x) state that the Borrowers have determined in good faith that such Indebtedness satisfies the requirements of the applicable provisions of Section 6.01 and 6.02 (taking into account any other applicable provisions of this Section 9.08), in which case such certificate shall be conclusive evidence thereof, or (y) request the Administrative Agent to confirm, based on the information set forth in such certificate and any other information reasonably requested by the Administrative Agent, that such Indebtedness satisfies such requirements, in which case the Administrative Agent may determine whether, in its reasonable judgment, such requirements have been satisfied (in which case it shall deliver to the Borrowers a written confirmation of the same), with any such determination of the Administrative Agent to be conclusive evidence thereof, and the Lenders hereby authorize the Administrative Agent to make such determinations.
Appears in 2 contracts
Samples: First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp), First Lien Credit Agreement (CAESARS ENTERTAINMENT Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank any L/C Issuer or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank each L/C Issuer and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement one or more agreements in writing entered into by the Borrowers Borrower and the Administrative Agent (and consented to in writing by the Required Lenders Lenders), and (yz) in the case of any other Loan Document, pursuant to an agreement one or more agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to in writing by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementObligation, or extend the stated expiration of any Letter of Credit beyond the applicable Revolving Facility Maturity Date (except as provided in Section 2.05(b)), without the prior written consent of each Lender directly and adversely affected therebythereby (which, notwithstanding the foregoing, such consent of each such Lender directly and adversely affected thereby shall be the only consent required hereunder to make such modification); provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i); provided, further, that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default shall not constitute a decrease, forgiveness or extension of the Commitments of any Lender),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood which, notwithstanding the foregoing, such consent of each such Lender shall be the only consent required hereunder to make such modification); provided, that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any scheduled date on which payment of interest on any Loan or any L/C Disbursement Obligation or any Fees is due, without the prior written consent of each Lender directly and adversely affected therebythereby (which, notwithstanding the foregoing, such consent of each such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),
(iv) amend or modify the provisions of Section 2.18(b) 5.02 of the Collateral Agreement, or any analogous provision of any other Security Document or any other Loan Document (c) including this Agreement, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender directly and adversely affected therebythereby (which, notwithstanding the foregoing, such consent of each such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying reducing the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests of such Subsidiary Loan Party is sold Parties from their respective Guarantees under the Subsidiary Guarantee Agreement except as provided herein or otherwise disposed of in a transaction permitted by this Agreementthe other Loan Documents, without the prior written consent of each Lender; provided further and
(vii) amend, waive or otherwise modify any term or provision of Sections 6.12, 7.01 (solely as it relates to Section 6.12) or the definition of “Senior Secured Leverage Ratio” (or any of its component definitions (as used in such Section 6.12 but not as used in other Sections (or for any other purposes) of this Agreement)) without the written consent of the Required Revolving Lenders; provided, further, that no such agreement amendment shall amend, modify or otherwise adversely affect the rights or duties of the Administrative Agent Agent, Swingline Lender or the Issuing Bank an L/C Issuer hereunder without the prior written consent of the Administrative Agent Agent, Swingline Lender or the Issuing Bank such L/C Issuer acting as such at the effective date of such agreementamendment, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such Lender.
(c) Without the consent of any LenderLender or L/C Issuer, the Loan Parties and the Administrative Agent or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof thereof, in each case to the extent such additional credit facility and Indebtedness is permitted hereunder, and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A) to (i) integrate any New Incremental Term Loan Commitments or New Incremental Revolving Facility Commitments on substantially the same basis in a manner consistent with Section 2.21, including, with respect to Revolving Loans or Other Term Loans, as the may be necessary to establish such Incremental Term Loans Loan Commitments or Revolving Facility Loans, as a separate Class or tranche from the existing Term Loan Commitments or Incremental Revolving Facility Commitments, as applicable and or (iiB) to cure any ambiguity, omission, mistakeerror, defect or inconsistency.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be necessary to ensure that all Term Loans established pursuant to Section 2.21 after the Closing Date that will be included in an existing Class of Term Loans outstanding on such date (an “Applicable Date”), when originally made, are included in each Borrowing of outstanding Term Loans of such Class (the “Existing Class Loans”), on a pro rata basis, and/or to ensure that, immediately after giving effect to such new Term Loans (the “New Class Loans” and, together with the Existing Class Loans, the “Class Loans”), each Lender holding Class Loans will be deemed to hold its Pro Rata Share of each Class Loan on the Applicable Date (but without changing the amount of any such Lender’s Term Loans), and each such Lender shall be deemed to have effectuated such assignments as shall be required to ensure the foregoing. The “Pro Rata Share” of any Lender on the Applicable Date is the ratio of (1) the sum of such Lender’s Existing Class Loans immediately prior to the extent Applicable Date plus the amount of New Class Loans made by such cure could not reasonably be expected to have a material adverse effect Lender on the LendersApplicable Date over (2) the aggregate principal amount of all Class Loans on the Applicable Date.
(g) With respect to the incurrence of any secured or unsecured Indebtedness (including any intercreditor agreement relating thereto), the Borrower may elect (in its discretion, but shall not be obligated) to deliver to the Administrative Agent a certificate of a Responsible Officer at least three Business Days prior to the incurrence thereof (or such shorter time as the Administrative Agent may agree), together with either drafts of the material documentation relating to such Indebtedness or a description of such Indebtedness (including a description of the Liens intended to secure the same or the subordination provisions thereof, as applicable) in reasonably sufficient detail to be able to make the determinations referred to in this paragraph, which certificate shall either, at the Borrower’s election, (x) state that the Borrower has determined in good faith that such Indebtedness satisfies the requirements of the applicable provisions of Sections 6.01 and 6.02 (taking into account any other applicable provisions of this Section 9.08), in which case such certificate shall be conclusive evidence thereof or (y) request the Administrative Agent to confirm, based on the information set forth in such certificate and any other information reasonably requested by the Administrative Agent, that such Indebtedness satisfies such requirements, in which case the Administrative Agent may determine whether, in its reasonable judgment, such requirements have been satisfied (in which case it shall deliver to the Borrower a written confirmation of the same), with any such determination of the Administrative Agent to be conclusive evidence thereof, and the Lenders hereby authorize the Administrative Agent to make such determinations.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Vici Properties Inc.), First Lien Credit Agreement (Vici Properties Inc.)
Waivers; Amendment. (a1) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b2) belowof this Section 10.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b2) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except:
(xa) as provided in Sections 2.21, 2.23 and 10.20;
(b) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders and (yor after the Discharge of ABL Revolving Claims, the Required Term Lenders); and
(c) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders (or after the Discharge of ABL Revolving Claims, the Required Term Lenders); provided, however, that that, except as provided in Sections 2.21, 2.23 and 10.20, no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.will:
Appears in 2 contracts
Samples: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Agent or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (xA) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower, the Administrative Agent and the Required Lenders and (yB) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity date of, or decrease the rate of interest on, any Loan Loan, or any L/C Disbursementfees or other amounts payable thereunder (including any Prepayment Premium, if owed) without the prior written consent of each Lender directly and adversely affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement (x) consent of Required Lenders shall not constitute a reduction in the rate of interest be required for purposes of any waiver, amendment or modification contemplated by this clause (i) and (y) that waiver or reduction of a post-default increase in interest shall be effective with the consent of the Required Lenders (and shall not require the consent of each directly and adversely affected Lender),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such affected Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive the Commitment of any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, Lender without the prior written consent of each Lender adversely affected therebysuch Lender, as applicable (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default, mandatory prepayments or of a mandatory reduction in the aggregate Commitments shall not constitute an increase or extension of maturity); provided, that consent of Required Lenders shall not be required for any waiver, amendment or modification contemplated by this clause (iii),
(iv) except to the extent necessary to give effect to the express intentions of this Agreement (including Sections 2.22 and 9.04), which, in respect of any amendment or modification to effect such express intentions, shall be effective with the consent of the Required Lenders, amend or modify the provisions of Section 2.18(b) or (c) of this Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected therebyLender,
(v) amend or modify the provisions of this Section 7.02, Sections 9.08(a), (b) or (c) or reduce the voting percentage set forth in the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender directly and adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date)thereby, or
(vii) (x) release all or substantially all the Collateral (it being understood that a transaction permitted under Section 6.05 shall not constitute a release of all or substantially all of the Collateral), or release any Subsidiary all or substantially all of the value of the Guarantees (except as otherwise permitted herein (including in connection with a transaction permitted under Section 6.05) or in the other Loan Party from its Guarantee Documents) under a the Collateral Agreement, unless, in the case of a Subsidiary Loan PartyGuarantor, all or substantially all the Equity Interests of such Subsidiary Loan Party Guarantor is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender or (y) subordinate the Liens of the Administrative Agent under the Security Documents with respect to all or substantially all of the Collateral (other than in respect of ABL Priority Collateral in accordance with the provisions of the Loan Documents as in effect on the date hereof or pursuant to Section 9.17) or subordinate the Obligations (including any Prepayment Premium, if owed) hereunder, without the prior written consent of each Lender; provided further , provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Lender hereunder without the prior written consent of the Administrative Agent or the Issuing Bank such Lender acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such Lender.
(c) Without Notwithstanding anything to the consent of any Lendercontrary contained in this Agreement, all discretionary determinations, waivers and consents that are referred to in this Agreement or the Loan Parties and Document (including whenever in this Agreement or any of the other Loan Documents the words “judgment”, “discretion”, “determination”, “satisfactory”, “acceptable”, or “agreed” or words of similar import are used) as being satisfactory (or reasonably satisfactory) to the Administrative Agent may (in their respective sole or requiring the Administrative Agent’s discretion, waiver or shallconsent (including whenever in this Agreement or any of the other Loan Documents the words “consent”, “approval”, “satisfaction”, “establishment” or words of similar import), shall mean for all purposes herein and in the Loan Documents that such discretionary determinations, waivers and consents must be satisfactory (or reasonably satisfactory) to the extent required by any Loan Document) enter into any amendmentRequired Lenders and requiring the Required Lenders’ discretion, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Partiesand consent (or, in any property or so that each case, the security interests therein comply with applicable law.
(d) Notwithstanding Administrative Agent at the foregoing, this Agreement may be amended (or amended and restated) with the written consent direction of the Required Lenders), including without limitation any amendments, waivers or consents, determinations as to whether any applicable documentation (including intercreditor or subordination agreements) or other deliverable hereunder is in form and substance satisfactory (or reasonably satisfactory) to the Administrative Agent, Agent (which must be in form and the Borrowers substance satisfactory (aor reasonably satisfactory) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition), notwithstanding the foregoing, this Agreement may be amended determinations as to collateral and guaranty matters and extensions of time periods in order to comply with the written consent terms of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingthis Agreement.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Tuesday Morning Corp/De), Credit Agreement (Tuesday Morning Corp/De)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Agreement and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto the Borrower and the Required Lenders (or the Administrative Agent, as applicable, and consented to by Agent with the consent of the Required Lenders); provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any Revolving L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or Revolving L/C Participation Fees or other fees of payable to any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments Defaults shall not constitute an increase of in the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which any scheduled payment of interest on any Loan or any Loan, Revolving L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) extend the stated expiration date of any Revolving Letter of Credit beyond the Revolving Maturity Date, without the prior written consent of each Lender directly affected thereby,
(vi) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vivii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under (except in connection with a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction sale permitted by this Agreement, pursuant to Section 6.05) without the prior written consent of each LenderLender and Issuing Bank, and
(viii) amend or modify the provisions of Section 4.01 or 4.02; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, the Swingline Facility Lender or the an Issuing Bank hereunder or under the other Loan Documents without the prior written consent of the such Administrative Agent Agent, Swingline Facility Lender or the an Issuing Bank acting as such at the effective date of such agreementBank, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.,
Appears in 2 contracts
Samples: Revolving Credit Agreement (Frank's International N.V.), Revolving Credit Agreement (Frank's International N.V.)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required LendersLenders (or otherwise in accordance with the terms of such Loan Document); provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any Revolving L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or Revolving L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any Loan, Revolving L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) subject to Section 9.08(d) and Section 9.08(e), amend or modify the provisions of Section 2.18(b2.20(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) extend the stated expiration date of any Revolving Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender directly affected thereby,
(vi) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vivii) release all or substantially all of the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests value of such the Guarantees under the Loan Document Guarantee of the Subsidiary Loan Party is sold or otherwise disposed of in Parties, taken as a transaction permitted by this Agreementwhole, without the prior written consent of each Lender, or
(viii) add a new Revolving Facility Lender, without the prior written consent of each Issuing Bank; provided and provided, further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Co-Syndication Agent, Co-Documentation Agent, Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Finance Parties (and potentially other Secured Parties), or as required by local law to give effect to, or protect any security interest for the benefit of the Finance Parties (and potentially other Secured Parties), in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Initial Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any particular tranche (such Term Loans, “Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (ai) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (bii) the Applicable Margin interest rate margin for such Replacement Term Loans shall not be higher than the Applicable Margin interest rate margin for such Refinanced Term Loans, (ciii) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (div) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding In addition, notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Company and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments, New Commitments or New Revolving Facility Commitments facilities provided pursuant to Section 9.08(d) or Section 9.08(e) on substantially the same basis as the Loans and any then-existing Term Loans or Revolving Facility Loans, or on customary terms for term loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersapplicable.
Appears in 2 contracts
Samples: Credit Agreement (CHC Group Ltd.), Credit Agreement (CHC Group Ltd.)
Waivers; Amendment. (a) No failure or delay of the Administrative by any Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 10.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether any Agent, any Lender or the Issuing Bank may have had notice or demand on any Borrower or any other Loan Party in any case shall entitle knowledge of such Person to any other or further notice or demand in similar or other circumstancesDefault at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendmentparagraphs (c) and (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended amended, supplemented or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicablethe Collateral Agent (in the case of any Security Document) and the Loan Party or Loan Parties that are parties thereto, and consented to by in each case with the written consent of the Required Lenders; provided, however, provided that no such agreement shall:
(i) decrease or forgive increase the Commitment of any Lender without the written consent of such Lender;
(ii) reduce the principal amount of, of any Loan or extend the final maturity of, LC Disbursement or decrease reduce the rate of interest onthereon, or reduce any Loan Fees payable hereunder, or change the currency of payment of any L/C DisbursementObligation, without the prior written consent of each Lender affected thereby;
(iii) postpone or extend the maturity of any Loan, or any scheduled date of payment of or the installment otherwise due on the principal amount of any Term Loan under Section 2.09, or the required date of payment of any Reimbursement Obligation, or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment or postpone the scheduled date of expiration of any Letter of Credit beyond the Revolving Maturity Date, without the written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of change Section 2.18(b2.14(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments or setoffs required thereby, without the prior written consent of each Lender adversely affected thereby,Lender;
(v) amend or modify change the provisions of this Section or percentage set forth in the definition of the terms “"Required Lenders,” “Majority Lenders” " or any other provision hereof of any Loan Document (including this Section 10.02) specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunderthereunder, without the prior written consent of each Lender (or each Lender of such Class, as the case may be);
(vi) release any Subsidiary Guarantor from its Guarantee (except as expressly provided in Article VII), or limit its liability in respect of such Guarantee, without the written consent of each Lender;
(vii) release all or a substantial portion of the Collateral from the Liens of the Security Documents or alter the relative priorities of the Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations and except in connection with a transaction permitted by Section 6.05 or Section 6.06), in each case without the written consent of each Lender;
(viii) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each affected thereby Class; or
(it being understood that, with ix) without the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination Lenders and Term Loan Lenders holding more than 50% of the Required Lenders principal amount of the outstanding Term Loans, reduce the amount of, or extend the date of, any scheduled payment on substantially the same basis as Term Loans required to be made under Section 2.09, change the order of application of prepayments among Term Loans and Revolving Commitments are included on under Section 2.10(e) or change the Closing Date)application of prepayments of Term Loans set forth in Section 2.10(e) to the remaining scheduled amortization payments to be made thereon under Section 2.09; provided, or
further, that (vi1) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, the Issuing Bank hereunder or the Swingline Lender without the prior written consent of the Administrative Agent or Agent, the Issuing Bank acting as such at or the effective date of such agreementSwingline Lender, as applicable. Each Lender shall the case may be bound by and (2) any waiver, amendment or modification authorized of this Agreement that by its terms affects the rights or duties under this Agreement of the Revolving Lenders (but not the Tranche A Lenders and Tranche B Lenders), or the Tranche A Lenders (but not the Revolving Lenders and Tranche B Lenders) or the Tranche B Lenders (but not the Revolving Lenders and Tranche A Lenders) may be effected by an agreement or agreements in writing entered into by Borrower and requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 9.08 10.02 if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Borrower, the Required Lenders and any consent the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank and the Swingline Lender) if (x) by any Lender pursuant to this Section 9.08 shall bind any assignee the terms of such Lenderagreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of, premium, if any, and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(c) Without If, in connection with any proposed change, waiver, discharge or termination of the provisions of this Agreement as contemplated by Section 10.02(b) (other than clause (iii) of such Section), the consent of any the Supermajority Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then Borrower shall have the right to replace all, but not less than all, of such nonconsenting Lender or Lenders (so long as all nonconsenting Lenders are so replaced) with one or more persons pursuant to Section 2.16 so long as at the time of such replacement each such new Lender consents to the proposed change, waiver, discharge or termination; provided, however, that Borrower shall not have the right to replace a Lender solely as a result of the exercise of such Lender, the Loan Parties 's rights (and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver withholding of any Loan Document, or enter into any new agreement or instrument, required consent by such Lender) pursuant to effect the granting, perfection, protection, expansion or enhancement clause (iii) of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawSection 10.02(b).
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Tranche B Loans (“"Refinanced Term Loans”") with a replacement "B" term loan tranche hereunder which shall be constitute Tranche B Loans hereunder (“"Replacement Term Loans”"); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans Final Maturity Date in effect immediately prior to such refinancing.
(fe) Notwithstanding the foregoing, technical and conforming modifications anything in Section 10.02(b) to the contrary so long as no Event of Default would exist after giving effect thereto, this Agreement and the other Loan Documents may be made amended at any time and from time to time to increase the aggregate Revolving Commitments or to establish one or more Classes of Term Loans and/or Revolving Commitments by an agreement in writing entered into by Borrower, the Administrative Agent, the Collateral Agent and each person (including any Lender) that shall agree to provide such Commitment or make a Term Loan of any Class so established (and each such person that shall not already be a Lender shall, at the time such agreement becomes effective, become a Lender with the same effect as if it had originally been a Lender under this Agreement with the Commitment and/or Term Loans set forth in such agreement); provided that the aggregate outstanding principal amount of the Term Loans and the new Commitments of all Classes shall at no time, without the consent of the Borrowers Required Lenders, exceed $100.0 million. Any such agreement shall amend the provisions of this Agreement and the other Loan Documents to set forth the terms of each Class of Term Loans or Commitments established thereby (including the amount and final maturity thereof (which shall not be earlier than the Revolving Maturity Date), any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof) and to effect such other changes (including changes to the provisions of this Section 10.02, Section 2.14 and the definition of "Required Lenders") as Borrower and the Administrative Agent to shall deem necessary or advisable in connection with the extent necessary to establishment of any such Class; provided that no such agreement shall (i) integrate effect any New change described in Section 10.02(b)(i) through (ix) without the consent of each person required to consent to such change under such clause (it being agreed, however, that any increase in the Revolving Commitment or establishment of any Class of Term Loans will not, of itself, be deemed to effect any of the changes described in Section 10.02(b)(vi) - (viii)), (ii) amend Article V, VI or VIII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits one or more Classes, but not all Classes, of Loans or Borrowings without the prior written consent of Lenders holding a majority in interest of the Loans and Commitments of each Class not so benefited (it being agreed that no provision requiring Borrower to prepay Term Loans of one or New Revolving Facility more Classes pursuant to Sections 2.10(c) through (e) shall be deemed to violate this clause) or (iii) change any other provision of this Agreement or any other Loan Document that creates rights in favor of Lenders holding Loans or Commitments on substantially of any existing Class, other than as necessary or advisable in the same basis as judgment of the Administrative Agent to cause such provision to take into account, or to make the benefits of such provision available to, Lenders holding Term Loans of such new Class or such new Commitments. The Loans, Commitments and Borrowings of any Class established pursuant to this paragraph shall constitute Loans, Commitments and Borrowings under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after the establishment of any such Class of Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersnew Commitments.
Appears in 2 contracts
Samples: Credit Agreement (Adesa Inc), Credit Agreement (Adesa Inc)
Waivers; Amendment. (a1) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b2) belowof this Section 10.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b2) Except Subject to Section 2.14(2) and 10.08(12) below, except as provided otherwise set forth in Section 2.20 with respect to a New Term this Agreement (or the applicable Loan AmendmentDocuments), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except:
(xa) as provided in Sections 2.21, 2.22, 2.23 and 10.20;
(b) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into signed by the Borrowers Borrower and the Required Lenders and Lenders; and
(yc) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and thereto, the Administrative Agent, as applicable, and consented to by Agent (with the consent of the Required Lenders) and the Borrower; provided, however, that that, except as expressly provided in Sections 2.14(2), 2.21, 2.22, 2.23 and 10.20, no such agreement shallwill:
(i) decrease decrease, forgive, waive or forgive excuse the principal amount of, or any interest on, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender directly and adversely affected thereby; , except as provided that any amendment in Section 2.05(3) with respect to the financial covenant definitions in this Agreement expiration of Letters of Credit (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default shall not constitute a reduction in decrease, forgiveness, waiver or excuse of the principal amount of, or any interest on, or an extension of the final maturity of, or a decrease the rate of interest for purposes on, any Loan or L/C Disbursement or an extension of this clause (ithe stated expiration of any Letter of Credit beyond the Maturity Date),;
(ii) increase or extend the Commitment or Refinancing Term Loan Commitment of any Lender or decrease decrease, forgive, waive or excuse the Commitment Fees or L/C Participation Fees or other fees of any Lender Lender, Agent or Issuing Bank without the prior written consent of such Lender Lender, Agent or Issuing Bank (it being understood that waivers or other modifications of conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments or Refinancing Term Loan Commitments shall not constitute an increase or extension of the Commitments or Refinancing Term Loan Commitments of any LenderLender or a decrease, forgiveness, waiver or excuse of any such fees),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of principal or interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender directly and adversely affected thereby,thereby (it being understood that waivers or other modifications of any conditions precedent, covenants, mandatory prepayments, mandatory commitment reductions, default interest, Defaults or Events of Default shall not constitute an extension of any date on which payment of principal or interest on any Loan, L/C Disbursement or any Fee is due);
(iv) amend or modify the provisions of Section 2.18(b2.18(3), (4) or (c5) of this Agreement, Section 5.02 of the Collateral Agreement or any analogous provision of any other Loan Document, in a manner that would by its terms alter the pro rata sharing of payments required therebythereby or the relative priorities of such payments, without the prior written consent of each Lender directly and adversely affected thereby,;
(v) change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the Borrower would be increased, or increase any of the percentages set forth in the definition of “Borrowing Base”, without the prior written consent of the Supermajority Lenders; provided that, for the avoidance of doubt, the foregoing shall not limit the ability of the Administrative Agent to implement, change or eliminate any Reserves in its Reasonable Credit Judgment as permitted hereunder without the prior written consent of any Lenders;
(vi) amend or modify the provisions of this Section 10.08 or the definition of the terms term “Supermajority Lenders”, “Required Lenders,” ”, “Majority Required Revolving Lenders” or “Required Term Lenders”, as the case may be, or any other provision hereof specifying the number or percentage of Supermajority Lenders, Required Lenders, Required Revolving Lenders or Required Term Lenders, as the case may be, required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), applicable Lender; or
(vivii) subordinate or release the liens on all or substantially all of the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests aggregate value of such Subsidiary Loan Party is sold the Guarantees (other than in connection with any transfer or otherwise disposed other release of in a transaction Collateral or of the relevant Guarantor permitted by this Agreementthe Loan Documents), without the prior written consent of each Lender; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c3) Without the consent of any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, in each case to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d4) Notwithstanding No Lender consent is required to effect any amendment or supplement to any Intercreditor Agreement that is:
(a) for the purpose of adding the holders of Junior Lien Debt or Indebtedness secured on a pari passu basis with the Liens securing the Initial Term Loans, Permitted Junior Secured Refinancing Debt (or a Debt Representative with respect thereto) as parties thereto, as expressly contemplated by the terms of such Intercreditor Agreement (it being understood that any such amendment or supplement may make such other changes to the applicable Intercreditor Agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing), this or
(b) expressly contemplated by any Intercreditor Agreement.
(5) This Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans Letters of Credit and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; provided that after giving effect to such new credit facilities (and each incurrence of Indebtedness thereunder), in no event shall the total Revolving Facility Credit Exposure (plus any such Indebtedness under a new facility permitted under this section (5)) exceed the Line Cap (subject to the Administrative Agent’s authority, in its sole discretion, to make Overadvances under Section 2.01(2) or Protective Advances under Section 2.01(3));
(6) Notwithstanding anything in this Section 10.08 to the contrary, the Borrower may enter into Incremental Facility Amendments in accordance with Section 2.21, Refinancing Amendments in accordance with Section 2.22, and Extension Amendments in accordance with Section 2.23, and such Incremental Facility Amendments, Refinancing Amendments and Extension Amendments shall be effective to amend the terms of this Agreement and the other applicable Loan Documents, in each case, without any further action or consent of any other party to any Loan Document.
(e7) In addition[Reserved].
(8) Notwithstanding anything to the contrary herein or any other Loan Document other than as set forth in the definition of “Required Revolving Lenders” or “Required Term Lenders”, notwithstanding no Defaulting Lender or Disqualified Institution will 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 foregoingconsent of all Lenders, this Agreement the Required Lenders or each affected Lender may be amended effected with the written consent of the Administrative Agent, the Company and the applicable Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher other than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, any Defaulting Lenders or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingDisqualified Institutions.
(f9) Notwithstanding anything in this Agreement or any other Loan Document to the foregoingcontrary, any amendment or waiver that by its terms affects the rights or duties of Lenders holding Loans or Commitments of a particular tranche (but not the Lenders holding Loans or Commitments of any other tranche) will require only the requisite percentage in interest of the affected Lenders that would be required to consent thereto if such Lenders were the only Lenders.
(10) Notwithstanding anything in this Agreement or any other Loan Document to the contrary, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the LendersAgent.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.), Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders Lenders, and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 5.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of Holdings, the Borrower or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent, the Documentation Agent or any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Waivers; Amendment. (a) No failure or delay on the part of the Administrative Agent, the Issuing Bank Agent or any Lender in exercising any power or right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance discontinuation of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other the Loan Party Parties therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other the Loan Party Parties in any case shall entitle such Person the Loan Parties to any other or further notice or demand in similar or other circumstances. Without limiting the generality of the foregoing, the execution and delivery of this Agreement or the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan AmendmentNone of this Agreement, neither this Agreement nor any of the other Loan Document nor Documents or any provision hereof or thereof may be waived, amended or modified modified, except (xi) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by SSCC, the Borrowers Borrower, the Administrative Agent and the Required Lenders and (yii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented parties to by the Required Lenderssuch Loan Document; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the scheduled payment of any interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly (other than, prior to its funding of any Loans, a Defaulting Lender) affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase the amount of or extend the termination date of the Commitment of, or decrease or extend the date for payment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of Fee owing to, any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of other than a mandatory reduction Defaulting Lender (except for the increase in the aggregate Commitments shall not constitute an increase amount of the Commitments of any such Defaulting Lender’s Commitment),
), (iii) extend amend or waive any Term modify the pro rata requirements of Section 2.16 or the provisions of Section 9.03 concerning the assignment of SSCC’s or the Borrower’s obligations hereunder, the provisions of this Section 9.08 or release a Guarantor from its guarantee under the Guarantee and Collateral Agreement (except as expressly contemplated in Section 9.09 or by the applicable Loan Installment Date Document) or reduce all or substantially all of the amount due on any Term Loan Installment Date Collateral from the Liens created under the Security Documents (except as expressly contemplated in Section 9.09 or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueby the applicable Security Document), without the prior written consent of each Lender adversely affected thereby,
(other than a Defaulting Lender), (iv) amend or modify change the provisions of Section 2.18(b) or (c) any Loan Document in a manner that would by its terms alter adversely affects the pro rata sharing rights in respect of payments required thereby, due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders (other than Defaulting Lenders) holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class or (v) reduce the percentage contained in the definition of the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waivethan a Defaulting Lender); provided, amend or modify any rights hereunder or make any determination or grant any consent hereunderfurther, without the prior written consent of each Lender adversely affected thereby (it being understood thathowever, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder or the Issuing Bank hereunder under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicableAgent. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and The Lenders hereby authorize the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into such amendments, restatements, supplements or other modifications to (i) the Security Documents as are deemed reasonably necessary by the Administrative Agent to protect and preserve the Liens on the Collateral created or purported to be created thereunder or to reflect or give effect to any amendmenttransaction permitted under this Agreement and (ii) the Loan Documents to correct any errors or omissions if the Administrative Agent and the Borrower have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any provision of the Loan Documents. Notwithstanding the foregoing provisions of this Section 9.08(b), modification or waiver with the agreement and consents of the Persons referred to therein, and without the necessity of obtaining the approval of any Loan Documentother Lenders hereunder, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(di) Notwithstanding the foregoing, this Agreement Incremental Facility Agreements may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans entered into as provided in Section 2.202.22(b) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, Extension Amendments may be entered into pursuant to the extent such cure could not reasonably be expected to have a material adverse effect on the LendersSection 2.25.
Appears in 2 contracts
Samples: Credit Agreement (SMURFIT-STONE CONTAINER Corp), Credit Agreement (Smurfit Stone Container Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative either Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Subject to Section 2.20 with respect to a New Term Loan Amendment2.14, neither this Agreement nor any other Loan Document nor any provision hereof of this Agreement or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent party thereto and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the applicable Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 4.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms “Required Lenders,” “Majority Lenders,” or any other provision hereof of this Agreement specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the Subsidiary Loan Party Guarantors from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan PartyGuarantor, all or substantially all the Equity Interests of such Subsidiary Loan Party Guarantor is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative either Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative such Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee Assignee of such Lender. Notwithstanding the foregoing, only the consent of the Required Revolving Facility Lenders shall be required to (and only the Required Revolving Facility Lenders shall have the ability to) waive, amend or modify the conditions set forth in Section 4.01.
(c) Without the consent of any LenderArranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent, as applicable, may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Incremental Term Loan Commitments or New Incremental Revolving Facility Commitments on substantially the same basis in a manner consistent with Section 2.21, including, with respect to Other Incremental Revolving Loans or Other Incremental Term Loans, as the may be necessary to establish such Incremental Term Loans Loan Commitments or Revolving Facility LoansLoans as a separate Class or tranche from the existing Term Loan Commitments or Incremental Revolving Facility Commitments. Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “Charges”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable and (ii) cure any ambiguitylaw, omissionthe rate of interest payable hereunder, mistaketogether with all Charges payable to such Lender or such Issuing Bank, defect shall be limited to the Maximum Rate; provided that such excess amount shall be paid to such Lender or inconsistency, such Issuing Bank on subsequent payment dates to the extent such cure could not reasonably be expected to have a material adverse effect on exceeding the Lenderslegal limitation.
Appears in 2 contracts
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Agent or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.20, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term A Loan Installment Date or reduce the amount due on any Term A Loan Installment Date, extend or waive any Term A-1 Loan Installment Date or reduce the amount due on any Term A-1 Loan Installment Date, or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees fee is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 5.02 of the Collateral Agreement, or (c) any analogous provision of any other Loan Document, in a manner that would by its terms alter the pro rata sharing among Facilities (as defined in the Existing Credit Agreement) of payments required thereby, without the prior written consent of each Lender a majority of the class of Lenders adversely affected thereby,
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any of Holdings, the Borrower or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further provided, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank Agent, acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c) Without Notwithstanding anything to the contrary in this Section 10.08, without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the applicable Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the applicable Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding anything in this Section 10.08 to the foregoingcontrary, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents (including in respect of prepayments) with the Term Loans and the Revolving Facility A Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) (such amendment, a “Refinancing Amendment”) to permit the refinancing refinancing, replacement or modification of all outstanding Term A Loans and/or Term A-1 Loans (“Refinanced Replaced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); , provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (di) all other terms applicable to such Replacement Term Loans (except as to interest rates, fees, final maturity date, premiums, optional prepayment provisions, required prepayment dates and participation in prepayments) shall be customary market terms for term A loans at the time of the issuance of such Replacement Term Loans and shall be substantially identical to, or or, taken as a whole, materially less favorable (as determined in good faith by the Borrower) to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Replaced Term Loans (save for any terms that apply solely after the latest maturity date of the Term A Loans or the Term A-1 Loans, as applicable, hereunder prior to giving effect to such Replacement Term Loans), (ii) the final maturity date of any Replacement Term Loans shall be no earlier than the then latest maturity date of the Term A Loans or Term A-1 Loans, as applicable, hereunder prior to giving effect to such Replacement Term Loans, except (iii) such Replacement Term Loans will rank pari passu or junior in right of payment with the other Loans and Commitments hereunder and (iv) all documentation in respect of such Replacement Term Loans shall be consistent with the foregoing. On the effective date of a Refinancing Amendment on which Replacement Term Loans are effected, subject to the extent necessary satisfaction of the foregoing terms and conditions, each Replacement Term Loan shall be deemed for all purposes a Term A Loan or Term A-1 Loan, as applicable, and each Lender providing such Replacement Term Loans shall become a Lender with respect to such Replacement Term Loans and all matters relating thereto. For the avoidance of doubt, no Lender shall be required to provide for covenants and other terms applicable to any period after the latest final maturity of the Replacement Term Loans in effect immediately prior to such refinancingLoans.
(f) Notwithstanding anything in this Section 10.08 to the foregoingcontrary, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Incremental Term Commitments or New Revolving Facility A Loan Commitments on substantially the same basis as the Term A Loans or Revolving Facility and any Incremental Term A-1 Loan Commitments on substantially the same basis as the Term A-1 Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Term Loan Agreement (Realogy Group LLC), Term Loan Agreement (Realogy Group LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or Agent of any Lender kind in exercising any power, right or power remedy hereunder and no course of dealing between any Guuarantor on the one hand and the Administrative Agent or under any Loan Document holder of any Guaranteed Obligation on the other hand shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or powerremedy hereunder, under any other Loan Document, under any agreement relating to Hedging Obligations or Treasury Management Obligations or any abandonment or discontinuance of steps to enforce such a power, right or powerremedy, preclude any other or further exercise thereof or the exercise of any other power, right or powerremedy. The rights and remedies of the Administrative Agent, Agent hereunder and of the Lenders and the Issuing Bank and the Lenders hereunder and Banks under the other Loan Documents and under any agreement relating to Hedging Obligations or Treasury Management Obligations are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party Guarantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 14(b), and then such waiver or and consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party Guarantor in any case shall entitle such Person Guarantor to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither . Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an a written agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other between each affected Loan DocumentParty party hereto with respect to which such waiver, pursuant to an agreement amendment or agreements in writing entered into by each party thereto modification relates and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting Required Lenders (except as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as otherwise provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersCredit Agreement).
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Third Amendment Effective Date), or;
(vi) release all or substantially all the Collateral or release any of the Borrower or any Subsidiary Loan Party Guarantor from its Guarantee under a Collateral AgreementGuarantee, unless, in the case of a Subsidiary Loan Party, all unless such release occurs pursuant to Section 9.18 or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement9.19, without the prior written consent of each Lender; provided further or
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11); provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lead Arranger, Syndication Agent, Co-Documentation Agent or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingrefinancing (for avoidance of doubt any such less favorable terms shall apply only to the Refinanced Term Loans and not to the Revolving Facility Loans).
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Additional Term Loan Commitments or New Additional Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable applicable.
(g) For the avoidance of doubt and notwithstanding provisions to the contrary in this Section 9.08 or elsewhere in this Agreement, this Agreement may be amended (or amended and restated) with the written consent of the Loan Parties and the Administrative Agent for the purpose of including one or more Incremental Loan Facilities contemplated and on the terms and conditions in Section 2.20, by (i) increasing the aggregate amount of Commitments under any of the respective Facilities and (ii) cure any ambiguity, omission, mistake, defect adding one or inconsistency, more additional borrowing tranches hereunder and to provide for the extent such cure could not reasonably be expected to have a material adverse effect on ratable sharing of the Lendersbenefits of this Agreement and the other Loan Documents with the other commitments and Obligations contemplated herein and therein.
Appears in 2 contracts
Samples: Credit Agreement (Massey Energy Co), Credit Agreement (Alpha Natural Resources, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Lender or any Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided . Notwithstanding anything to the contrary contained herein or in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant the authority to an agreement enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or agreements any of them shall be vested exclusively in, and all actions and proceedings at law in writing entered into by each party thereto connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent, as applicable, Agent in accordance with Sections 7.02 and consented to by 7.03 for the Required Lendersbenefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as the Administrative Agent) hereunder and under the other Loan Documents, (ii) any Issuing Bank from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank) hereunder and under the other Loan Documents, (iii) any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender) hereunder and under the other Loan Documents, (iv) any Lender from exercising setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.17), or (v) subject to Section 8.11, any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Insolvency Law.
(b) Any amendment or waiver of any provision of this Agreement or any other Loan Document (other than the Fee Letter or any Letter of Credit Document), and any consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective if the same shall be in writing and signed by the Required Lenders and the Borrower (or by the Administrative Agent (with the prior written consent of the Required Lenders) and the Borrower), provided that such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided further that (x) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing signed by the Administrative Agent and the Borrower to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, and (y) no such agreement amendment, waiver or consent shall:
(i) decrease extend the Maturity Date of or forgive increase the stated amount of any Commitment of any Lender (or reinstate any Commitment of any Lender terminated pursuant to the terms hereof) without the written consent of each Lender directly affected thereby;
(ii) postpone any date fixed by this Agreement for any scheduled payment (but not any prepayment) of principal, interest or fees due to any Lender hereunder without the written consent of each Lender directly affected thereby;
(iii) reduce the principal amount of, or extend the final maturity of, or decrease the rate of interest specified herein on, any Loan or any L/C Disbursement, Disbursement or any interest or Fees payable hereunder without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender thereby (it being understood and agreed that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction neither (x) any change in the aggregate Commitments definition of “Leverage Ratio”, or in the component definitions thereof, nor (y) any change to designate a replacement to the LIBO Rate shall not constitute an increase a reduction of rate of interest or any interest or Fees payable hereunder); provided, however, that only the consent of the Commitments Required Lenders shall be required to waive any obligation of the Borrower to pay default interest pursuant to Section 2.07, including with respect to any Lender),amount payable thereunder or in connection therewith;
(iiiiv) extend change Section 2.16, Section 2.17(a) or waive any Term Loan Installment Date or reduce Section 7.05 in a manner that would alter the amount due on any Term Loan Installment Date or extend any date on which payment pro rata sharing of interest on any Loan or any L/C Disbursement or any Fees is due, payments required thereby without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) amend or modify the provisions change any provision of this Section Section, or the percentage specified in definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waiveamend, amend waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely directly affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orthereby;
(vi) release all or substantially all provide that the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of Loans may be made in a transaction permitted by this Agreement, currency other than U.S. dollars without the prior written consent of each Lender directly affected thereby;
(vii) except as expressly permitted hereunder or under any Security Document, release all or substantially all of the value of the guaranties provided by the Guarantors hereunder or all or substantially all of the Collateral without the written consent of each Lender; provided further or
(viii) amend or modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(g) without the written consent of such SPC, provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Agent, an Issuing Bank or a Swing Line Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Agent, such Issuing Bank acting as such at or Swing Line Lender, respectively. Notwithstanding anything to the effective date of such agreementcontrary herein, as applicable. Each no Defaulting Lender shall be bound by have any waiverright to approve or disapprove any amendment, amendment waiver or modification authorized by this Section 9.08 consent hereunder or under any other Loan Document (and any amendment, waiver or consent which by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without its terms requires the consent of any Lenderall Lenders, the Loan Parties and the Administrative Agent may (all Lenders or a majority in their respective sole discretion, interest of Lenders hereunder or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement each affected Lender may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made effected with the consent of the Borrowers and the Administrative Agent applicable Lenders other than Defaulting Lender); provided that any such amendment, waiver or consent referred to the extent necessary to in clause (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loansb)(i), as applicable and (ii) cure or (iii) above that, but for this sentence, would require the prior written consent of such Defaulting Lender, will continue to require the consent of such Defaulting Lender; and provided further that any ambiguitysuch amendment, omissionwaiver or consent requiring the consent of all Lenders, mistake, defect such Lender or inconsistency, each affected Lender that by its terms affects any Defaulting Lender more adversely than any other Lender whose consent is so required shall require the consent of such Defaulting Lender. No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersit under Hedging Agreements or Banking Services Obligations.
Appears in 2 contracts
Samples: Amended and Restated Credit Agreement (Oil States International, Inc), Credit Agreement (Oil States International, Inc)
Waivers; Amendment. (a1) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b2) belowof this Section 10.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b2) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except:
(xa) as provided in Sections 2.21, 2.23 and 10.20;
(b) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders and (yor after the Discharge of ABL Revolving Claims, the Required Term Lenders); and
(c) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders (or after the Discharge of ABL Revolving Claims, the Required Term Lenders); provided, however, that that, except as provided in Sections 2.21, 2.23 and 10.20, no such agreement shallwill:
(i) decrease decrease, forgive, waive or forgive excuse the principal amount of, or any interest on, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender adversely directly affected thereby; , except as provided that any amendment in Section 2.05(3) with respect to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate expiration of interest for purposes Letters of this clause (i),Credit;
(ii) increase or extend the Commitment of any Lender or decrease decrease, waive or excuse the Commitment Fees or L/C Participation Fees or other fees of any Lender Lender, Agent or Issuing Bank without the prior written consent of such Lender Lender, Agent or Issuing Bank (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of principal or interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) 2.18 of this Agreement, Section 5.02 of the Collateral Agreement or (c) Section 4.2 of the Intercreditor Agreement or any analogous provision of any of this Agreement or any other Loan Document, in a manner that would by its terms alter the pro rata sharing of payments required therebythereby or the relative priorities of such payments, without the prior written consent of each Lender adversely affected thereby,;
(v) change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the Borrower would be increased, or increase any of the percentages set forth in the definition of “Borrowing Base”, without the prior written consent of Lenders which would constitute the Required Lenders if the percentage “50.0%” contained in the definition thereof were changed to “66-2/3%” (such Lenders, the “Supermajority Lenders”); provided that the foregoing shall not limit the ability of the Administrative Agent to implement, change or eliminate any Reserves in its Reasonable Credit Judgment as permitted hereunder without the prior written consent of any Lenders;
(vi) amend or modify the provisions of this Section 10.08 or the definition of the terms term “Supermajority Lenders” or “Required Lenders,” “Majority Lenders” ”, as the case may be, or any other provision hereof specifying the number or percentage of Supermajority Lenders or Required Lenders, as the case may be, required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby applicable Lender;
(it being understood that, with the consent vii) release a material portion of the Required LendersCollateral (or subordinate the Liens in favor of the Administrative Agent on a material portion of the Collateral including by altering the definition of ABL Priority Collateral in the Intercreditor Agreement), additional extensions of credit unless pursuant to a transaction permitted by this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date)Agreement, or
(vi) release all or substantially all the Collateral or release any of Holdings, any Borrowing Base Party or any Subsidiary Loan Party from its Guarantee their respective obligations as a Borrowing Base Party or Subsidiary Loan Party under a this Agreement or from their respective Guarantees under the Collateral AgreementAgreement (as applicable), unless, in the case of a Subsidiary Loan PartyParty (other than the Borrower), all or substantially all the Equity Interests of such Subsidiary Loan Party is are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender;
(viii) increase the aggregate Revolving Facility Commitments, other than as provided in Section 2.21, without the prior written consent of each Revolving Lender; or
(ix) at any time when there is outstanding more than one tranche of Loans, amend, modify or waive any provision of this Agreement which adversely impacts one or more tranches in a manner different than that which applies to one or more other tranches, without the consent of Lenders holding a majority of each tranche of such adversely affected Loans; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c3) Without the consent of the Administrative Agent or any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d4) Notwithstanding the foregoing, anything in this Agreement may be amended (or amended and restated) with any other Loan Document to the written consent of the Required Lenderscontrary, the Administrative AgentBorrower may enter into Incremental Facility Amendments in accordance with Section 2.21, Extension Amendments in accordance with Section 2.23, and such Incremental Facility Amendments and Extension Amendments shall be effective to amend the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits terms of this Agreement and the other applicable Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees Documents, in respect thereof and (b) each case, without any further action or consent of any other party to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersLoan Document.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f5) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Incremental Commitments on substantially the same basis as the Term Loans Revolving Loans.
(6) Notwithstanding the foregoing, no consent of any Defaulting Lender will be required other than with respect to any amendment or Revolving Facility Loanswaiver set forth in clauses (a) through (c) of Section 10.08(2) that directly and adversely affects such Lender.
(7) Notwithstanding the foregoing, as applicable and (ii) the Administrative Agent, with the consent of the Borrower, may amend, modify or supplement any Loan Document without the consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity, omission, mistake, inconsistency or defect or inconsistencycorrect any typographical error or other manifest error in any Loan Document, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Document if the extent such cure could same is not reasonably be expected objected to have a material adverse effect on in writing by the LendersRequired Lenders within five Business Days following receipt of notice thereof.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 2.21 with respect to a New Term Loan an Incremental Facility Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments Commitment of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) or 2.10(d) of this Agreement or Section 5.02 of the Collateral Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “"Required Lenders,” “Majority Lenders” " or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or
(vii) effect any waiver, amendment or modification of any Loan Document that would alter the relative priorities of the rights of the Secured Parties in the Collateral; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent, the Documentation Agent or any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)
Waivers; Amendment. (a) No failure or delay of by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 11.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank may have had notice or demand on any Borrower or any other Loan Party in any case shall entitle knowledge of such Person to any other or further notice or demand in similar or other circumstancesDefault at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto the Administrative Agent and the Administrative AgentLoan Party or Loan Parties that are parties thereto, as applicable, and consented to by in each case with the written consent of the Required Lenders; provided, however, provided that no such agreement amendment, waiver or consent shall
, unless in writing and signed by all the Lenders do any of the following: (i) decrease increase the dollar amount of the Commitment of any Lender, (ii) reduce or forgive the principal amount of, of any Loan or extend the final maturity of, LC Disbursement or decrease reduce the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment thereon (other than to waive default interest under Section 2.06(c) to the financial covenant definitions in this Agreement shall not constitute extent a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase waiver of the Commitments underlying default giving rise to such default interest does not require a vote of all Lenders), or reduce or forgive any Lender),
Fees payable hereunder, (iii) extend postpone the maturity of any Loan, or waive the required date of reimbursement of any Term Loan Installment Date LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount due on of, waive or excuse any Term Loan Installment Date such payment, or extend postpone the scheduled date of expiration of any Commitment or postpone the scheduled date on which payment of interest on expiration of any Loan or any L/C Disbursement or any Fees is dueLetter of Credit beyond the Revolving Maturity Date, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of change Section 2.18(b2.14(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments or set-offs required therebythereby or change Section 9.02, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify change the provisions of this Section or percentage set forth in the definition of the terms “Required Lenders,” ”, “Majority Supermajority Lenders” or any other provision hereof of any Loan Document (including this Section 11.02) specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunderthereunder, without the prior written consent of each Lender adversely affected thereby (it being understood thator each Lender of such Class, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Datecase may be), or
(vi) release Holdings or any Subsidiary Guarantor from its Guarantee (except as expressly provided in Article VII), or limit its liability in respect of such Guarantee, (vii) release all or substantially all of the Collateral from the Liens of the Security Documents or release alter the relative priorities of the Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations), or (viii) change any Subsidiary provisions of any Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of Document in a transaction permitted manner that by this Agreementits terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each Lenderaffected Class; provided further provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, the Issuing Bank hereunder or the Swingline Lender without the prior written consent of the Administrative Agent or Agent, the Collateral Agent, the Issuing Bank acting as such at or the effective date of such agreementSwingline Lender, as applicable. Each Lender shall be bound by the case may be, (2) any waiver, amendment or modification authorized consent that adjusts the eligibility criteria or creates new eligibility criteria for Eligible Accounts or Eligible Inventory which, in each case, has the effect of making more credit available shall require the consent of Supermajority Lenders and (3) any waiver, amendment or consent that increases in advance rates for the Borrowing Base shall require the consent of Lenders having at least 80% of the Revolving Commitments. Notwithstanding the foregoing, any provision of this Agreement may be amended by this Section 9.08 an agreement in writing entered into by Borrowers, the Required Lenders and any consent the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank and the Swingline Lender) if (x) by any Lender pursuant to this Section 9.08 shall bind any assignee the terms of such Lenderagreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(c) Without If, in connection with any proposed change, waiver, discharge or termination of the provisions of this Agreement that requires unanimous approval of all Lenders as contemplated by Section 11.02(b) (other than clause (iii) of such Section), the consent of any Lender, the Loan Parties and Supermajority Lenders is obtained but the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities of such other Lenders whose consent is required is not obtained, then Borrowers shall have the right to replace all, but not less than all, of such non-consenting Lender or Lenders (in addition to New Term Loans so long as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the all non-consenting Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”are so replaced) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life one or more Persons pursuant to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans Section 2.16 so long as at the time of such refinancing replacement each such new Lender consents to the proposed change, waiver, discharge or termination; provided, however, that Borrowers shall not have the right to replace a Lender solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to clause (diii) of Section 11.02(b); provided further that each replaced Lender receives payment in full of the principal of and interest accrued on each Loan made by it and all other terms applicable amounts owing to such Replacement Term Loans shall be substantially identical to, it or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide accrued for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingits account under this Agreement.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Lenox Group Inc), Revolving Credit Agreement (Department 56 Inc)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 5.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of Holdings, the Borrower or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent, the Documentation Agent or any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Incremental Term Loan Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersapplicable.
Appears in 2 contracts
Samples: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Company and the Required Lenders (or, in respect of any waiver, amendment or modification of Section 6.10, the Majority Lenders under the Revolving Facility rather than the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lendersprovided for therein; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is fees payable hereunder are due, without the prior written consent of each Lender directly and adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c2.18(c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender directly and adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Effective Date), or,
(vi) release all or substantially all the Collateral or release any Holdings, the Company, CAC or all or substantially all of the other Subsidiary Loan Party Parties from its Guarantee under a the Holdings Agreement or the U.S. Collateral Agreement, as applicable, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each LenderLender adversely affected thereby,
(vii) effect any waiver, amendment or modification that by its terms directly adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further or
(viii) convert the currency of any Loan or any Commitment, without the prior written consent of the Lender holding such Loan or Commitment; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, the Deposit Bank or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent, the Deposit Bank or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Celanese CORP), Credit Agreement (Celanese CORP)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 2.18, with respect to any Refinancing Amendment, in Section 2.19 with respect to an Extension Offer or as otherwise provided herein or in a New Term Loan AmendmentDocument, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and with the Administrative Agent, as applicable, and consented to by consent of the Required LendersLenders (provided, that amendments to the ABL Intercreditor Agreement shall require the agreement of the Loan Parties (or any of them) only to the extent required pursuant to the terms thereof); provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any fee or any interest on any Loan, or waive or excuse any such payment or any part thereof (other than with respect to any default interest), or decrease the amount of any fee or the rate of interest on, on any Loan or (other than with respect to any L/C Disbursementdefault interest), without the prior written consent of each Lender directly and adversely affected thereby; provided thereby (it being understood that any (x) the waiver of (or amendment to the financial covenant terms of) any mandatory prepayment of the Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (y) any change to the definition of “Consolidated EBITDA” or in the component definitions in this Agreement thereof shall not constitute a reduction or forgiveness in the any rate of interest for purposes of pursuant to this clause (i),
, (ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers a waiver of any condition precedent or modifications of conditions precedent, covenants, Defaults or Events of any Default or Event of a Default, mandatory prepayment or mandatory reduction in of the aggregate Commitments shall not constitute an extension or increase of the Commitments any Commitment of any Lender),
, (iii) extend amend or waive any Term Loan Installment Date modify the pro rata requirements of Section 2.13(b), Section 2.13(c) or reduce Section 2.14, the amount due on any Term Loan Installment Date provisions of Section 10.04(j) or extend any date on which payment the provisions of interest on any Loan this Section or any L/C Disbursement release all or any Fees is duesubstantially all of the Guarantors (other than in connection with the sale of such Guarantors in a transaction permitted by Sections 7.04 or 7.05) or all or substantially all of the Collateral (other than as permitted hereby), without the prior written consent of each Lender directly and adversely affected thereby,
thereby (or, in the case of Section 10.04(j), each Lender), (iv) amend or change the provisions of any Loan Document in a manner that by its terms materially and adversely affects the rights of Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of the Required Class Lenders with respect to each materially and adversely affected Class, (v) modify the protections afforded to an SPV pursuant to the provisions of Section 2.18(b10.04(i) or without the written consent of such SPV (cvi) reduce the percentage contained in a manner that would by its terms alter the pro rata sharing definition of payments required thereby, the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required LendersLenders (if such consent is otherwise required), additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Term Loan Commitments are included on the Closing Restatement Effective Date)) or (vii) modify the definition of “Required Class Lenders” without the consent of the Required Class Lenders with respect to each Class of Loans or Commitments; provided further that (w) no Lender consent is required to effect a Refinancing Amendment or an Extension (except as expressly provided in 2.18 or 2.19, or
as applicable) or to effect any amendment expressly contemplated by Section 7.12, (vix) release all [reserved], (y) modifications to Section 2.14, 2.15 or substantially all any other provision requiring pro rata payments or sharing of payments in connection with (I) any buy back of Term Loans by the Collateral Borrower pursuant to Section 10.04(k) or release pursuant to any Subsidiary Loan Party from its Guarantee under similar program that may in the future be permitted hereunder, (II) [reserved] or (III) any Extension, shall only require approval (to the extent any such approval is otherwise required) of the Lenders participating and (z) no Lender consent other than the consent of the Required Lenders is required to effect any amendment or supplement to the ABL Intercreditor Agreement or the Junior Lien Intercreditor Agreement (I) that the Administrative Agent is otherwise authorized to enter into with only the consent of the Required Lenders by Section 10.23, (II) that is for the purpose of adding the holders of Permitted Junior Priority Additional Debt, (or a Collateral AgreementJunior Representative with respect thereto) as parties thereto, unlessas expressly contemplated by the Junior Lien Intercreditor Agreement (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the case good faith determination of a Subsidiary Loan Partythe Administrative Agent, all are required to effectuate the foregoing and provided, that such other changes are not adverse, in any material respect, to the interests of the Lenders) or substantially all (III) that is expressly contemplated by Section 5.2(c) or the Equity Interests second paragraph of such Subsidiary Loan Party is sold Section 7.4 of the ABL Intercreditor Agreement (or otherwise disposed the comparable provisions, if any, of in a transaction permitted by this the Junior Lien Intercreditor Agreement, without the prior written consent of each Lender); provided further that no such agreement shall amend, modify or otherwise adversely affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Required Lenders, Administrative Agent or the Issuing Bank acting as such at the effective date of such agreementCollateral Agent, as applicable. Each Lender Notwithstanding any other language to the contrary contained herein, with respect to any amendment, waiver or modification to which the Administrative Agent’s consent is not required, the parties agree to deliver to the Administrative Agent a copy of each such amendment, waiver or modification; provided that, (i) no party shall be liable for its failure to comply with this sentence and (ii) the Administrative Agent shall not be bound by any waiver, such amendment or modification authorized by this Section 9.08 unless and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lenderuntil it has received a copy thereof.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) solely with the written consent of the Required Lenders, the Administrative Agent, the Required Lenders and the Borrowers Borrower without the need to obtain the consent of any other Lender if such amendment is delivered in order to if such amendment is delivered in order to correct or cure (ax) ambiguities, errors, omissions, defects, (y) to add one effect administrative changes of a technical or more additional credit facilities immaterial nature or (z) incorrect cross references or similar inaccuracies in addition this Agreement or the applicable Loan Document. This Agreement, guarantees, collateral documents, security documents, intercreditor agreements, and related documents executed in connection with this Agreement may be in a form reasonably determined by the Administrative Agent or Collateral Agent, as applicable, and may be amended, modified, terminated or waived, and consent to New Term Loans as provided any departure therefrom may be given, without the consent of any Lender if such amendment, modification, waiver or consent is given in Section 2.20order to (x) comply with local law or advice of counsel or (y) cause such guarantee, collateral document, security document or related document to be consistent with this Agreement and to permit the extensions of credit from time to time outstanding thereunder other Loan Documents. The Borrower, the Required Lenders and the accrued interest and fees in respect thereof Administrative Agent may, without the consent of any other Lender, effect amendments to share ratably in the benefits of this Agreement and the other Loan Documents with as may be necessary in the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination reasonable opinion of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative AgentBorrower, the Company and the Required Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to effect the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loansprovisions of Section 2.05, as applicable Section 2.17, Section 2.18 and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, Section 2.19. Notwithstanding anything to the extent contrary contained herein, such cure could not reasonably be expected amendment shall become effective without any further consent of any other party to have a material adverse effect on the Lenderssuch Loan Document.
Appears in 2 contracts
Samples: Credit Agreement (Yellow Corp), Credit Agreement (Yellow Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other No Loan Document nor any or provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to by an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to by an agreement or agreements in writing entered into by each party the parties thereto and with the Administrative Agent, as applicable, and consented to by consent of the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or date for the payment of any interest on any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase or extend the Commitment or decrease or extend the date for payment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend amend or waive any Term Loan Installment Date modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(j) or reduce the amount due on any Term Loan Installment Date provisions of this Section or, except as contemplated by the Intercreditor Agreement, release Subsidiary Guarantors which represent all or extend any date on which payment substantially all of interest on any Loan the value of the Guaranty Obligations or any L/C Disbursement all or any Fees is duesubstantially all of the Collateral, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or modify the protections afforded to an SPC pursuant to the provisions of Section 2.18(b9.04(i) without the written consent of such SPC or (cv) reduce the percentage contained in a manner that would by its terms alter the pro rata sharing definition of payments required thereby, the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Datedate hereof), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such LenderCollateral Agent.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Global Geophysical Services Inc), Second Lien Credit Agreement (Global Geophysical Services Inc)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender Party in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce any such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders Lender Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Credit Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Credit Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to (A) an agreement or agreements in writing entered into by the Borrowers Loan Parties and the Required Lenders and (B) an agreement or agreements in writing entered into by the Loan Parties and the Administrative Agent as contemplated in Section 9.08(f) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, Collateral Agent (as applicable, ) and consented to by the Required LendersLenders (except where the provisions of any Loan Document expressly provide otherwise) and otherwise in accordance with the Intercreditor Agreement; provided, however, provided that no such agreement shall:
(i) subject to Section 2.14, decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest (other than with respect to default interest) on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the any Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase or extension of the Commitments of any LenderLender or the extension or waiver of the payment of principal),;
(iii) extend or waive any Term date for payment of principal of any Loan Installment Date or reduce the amount due on any Term Loan Installment Date such date or extend any date on which payment of interest on any Loan or any Loan, L/C Disbursement or any Fees Fee is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) amend or modify the provisions of this Section or 9.08, the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vi) extend the stated expiration date of any Letter of Credit beyond the Maturity Date without the prior written consent of each Lender directly affected thereby;
(vii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unlesswithout the written consent of each Lender;
(viii) change the order of priority of payments set forth in the provisions of the Intercreditor Agreement relating to application of proceeds, in any case, without the prior written consent of each Lender adversely affected thereby;
(ix) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class;
(x) amendments which only affect a particular Class shall only require the approval of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of such Class; or
(xi) subordinate the Obligations hereunder, or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, may be without the prior written consent of each Lender; provided further provided, further, that no such agreement shall (i) amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent, the Collateral Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable or (ii) amend, modify or waive any provision of Section 8.05 or Section 9.05 that affects the Collateral Agent or the Depositary Agent without the written consent of the Collateral Agent or the Depositary Agent, as applicable; and provided, further, that, notwithstanding any provision of this Section 9.08 to the contrary, any amendment of the definition of “Date Certain” shall take effect when approved in writing by the Required Lenders. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Notwithstanding the other provisions of this Section 9.08, the applicable Credit Parties and the Administrative Agent and/or the Collateral Agent may (but shall have no obligation to) amend or supplement the Loan Documents without the consent of any other Lender Party (i) to cure any ambiguity, defect or inconsistency, (ii) to make any change that would provide any additional rights or benefits to the Lender Parties, or (iii) to make, complete or confirm any grant of Collateral or make equity contributions, in either case, permitted or required by this Agreement or any of the Loan Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the Security Documents, (iv) to effectuate the intent of Section 5.10(g), or (v) to amend Schedule 5.11 as set forth in, and consistent with the requirements of, Section 5.11(a).
(d) Without the consent of any Lenderother Lender Party, the Loan applicable Credit Parties and the Administrative Agent and/or the Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law Requirements of Law to give effect to, to or protect any security interest for the benefit of the Secured Parties, Parties in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent Requirements of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersLaw.
(e) In additionNotwithstanding anything to the contrary contained herein, notwithstanding if at any time any change in GAAP would affect any computation, basket or defined term set forth in any Loan Document, and the foregoingBorrower shall at such time or thereafter so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend the relevant provisions of the Loan Documents to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, such computation, basket or defined term shall continue to be computed in conformity with GAAP but without giving effect to such identified changes to GAAP. Any amendment pursuant to this Agreement may be amended with clause (e) shall not require the written consent of any Secured Party other than the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 2 contracts
Samples: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the Issuing anyIssuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) amend or modify the provisions of this Section or the definition of the terms “"Required Lenders,” “" "Majority Lenders” " or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.;
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(ba) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21 or 2.23, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that except as expressly set forth in Section 2.21 or 2.23, no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided that any amendment to the financial covenant “Borrowing Base,” “Excess Availability” and related definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such each Lender directly affected thereby (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend change the definition of the term “Borrowing Base” or modify any component definition thereof if as a result thereof the provisions amounts available to be borrowed by the Borrower would be increased (provided that the foregoing shall not limit the discretion of Section 2.18(b) the Administrative Agent to change, establish or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, eliminate any Reserves without the prior written consent of any Lenders), in each Lender adversely affected thereby,case without the prior written consent of the Super Majority Lenders;
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms terms, “Required Lenders,” “Super Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders and Super Majority Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vi) release all or substantially all the Collateral or release any Subsidiary of Holdings, the Borrower or all or substantially all of the other Loan Party Parties from its Guarantee their respective Guarantees under a Collateral Agreementthe applicable Security Document, unless, in the case of a Subsidiary Loan Partyeach case, all any assets or substantially all the Equity Interests of such Subsidiary Loan Party is are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, except in connection with a “credit bid” undertaken by the Administrative Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 1129(b)(2)(A)(ii) or otherwise under the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release); provided further or
(vii) change the order of application of proceeds of Collateral set forth in Section 2.18(b) or modify the ratable sharing of payments required thereby or required by Section 2.18(c) without the prior written consent of each Lender directly adversely affected thereby; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank Bank, as applicable, acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(cb) Without the consent of any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(dc) Notwithstanding the foregoingforegoing (but without limiting the rights of the Lenders and the Agents under the provisos to the preceding clause (b)), this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof thereof, and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders or the Super Majority Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans.
(e) Notwithstanding anything to the contrary herein, as applicable no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (1) the Commitment of such Lender may not be increased or extended without the consent of such Lender, (2) the date on which payment of interest on any Loan or any L/C Disbursement or any fees is due may not be extended without the prior written consent of such Lender, to the extent such Lender is adversely affected thereby, and (ii3) this Section 10.08 may not be amended or modified without the prior written consent of such Lender to the extent such Lender is adversely affected thereby.
(f) The Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement to cure any ambiguity, omission, mistake, defect or inconsistency, to so long as such amendment, modification or supplement does not adversely affect the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersrights of any Lender.
Appears in 1 contract
Samples: Credit Agreement (Verso Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower Holdings, the Company or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower Holdings, the Company or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 2.21 with respect to a New Term Loan an Incremental Facility Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Company, the Administrative Agent and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly and adversely affected thereby; provided provided, that any amendment to the financial covenant Total Leverage Ratio or the component definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Revolving Facility Commitment of any Lender or decrease the Revolving Facility Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender directly and adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) or 2.10(c) of this Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender directly and adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08, Section 9.04(a)(i) or the definition of the terms “Required Lenders,” ”, “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder”, without the prior written consent of each Lender directly and adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral under each Security Document or release any Subsidiary Loan Party from its all or substantially all of the value of the Guarantees under the Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further , or
(vii) amend, modify or waive Section 2.18(b) or (c) or Section 7.02 of this Agreement or the analogous provisions of any Security Document so as to alter the ratable treatment of Secured Obligations arising under the Loan Documents and Secured Obligations arising under Specified Hedge Agreements and “Cash Management Obligations” or the definition of “Lender Counterparty,” “Specified Hedge Agreement,” “Cash Management Obligations,” or “Secured Obligations,” in each case in a manner adverse to any Lender Counterparty or Covered Counterparty with Secured Obligations then outstanding without the written consent of any such Lender Counterparty or Covered Counterparty, as the case may be, or
(viii) increase the aggregate Revolving Facility Commitment (including pursuant to Incremental Extension of Credit) to an amount in excess of $110.0 million without the prior written consent of the Majority Lenders under the Term Facility and the Majority Lenders under the Revolving Facility, or
(ix) amend or modify the provisions of Sections 2.11(g) or 7.02 in a manner adversely affecting the priority status of the Secured Obligations under the Revolving Facility without the prior written consent of the Majority Lenders under the Revolving Facility. provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, an Issuing Bank or the Issuing Bank Swingline Lender hereunder without the prior written consent of the Administrative Agent or the Agent, such Issuing Bank acting as such at the effective date of such agreementagreement or the Swingline Lender, as applicable; provided, however, if an Affiliate of Holdings or any Permitted Investor shall be a Lender, the Loans held by such person shall be deemed to have been voted in the same manner as the Required Lenders (assuming for this purpose that the Loans held by such person were not outstanding other than in respect of Section 9.04(a)(ii), and clauses (i), (ii), (iii) or (iv) of the first proviso to this Section 9.08(b)). Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent or any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding Notwithstanding the foregoing, this Agreement Article VIII hereof may be amended with the written consent of the Administrative Agent, the Company Agent and the Lenders providing Borrower alone to add parallel debt and similar provisions required or advisable in connection with the relevant Replacement Term Loans (as defined below) to permit the refinancing execution and delivery of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingSecurity Documents.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with Without the consent of the Borrowers Syndication Agent or any Joint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent to may enter into the extent necessary to (i) integrate any New Term Commitments intercreditor arrangements contemplated by the definitions of “Permitted Secured Ratio Debt”, “Permitted Unsecured Ratio Debt”, “Permitted First Priority Refinancing Debt” and “Permitted Second Priority Refinancing Debt” or New Revolving Facility Commitments on substantially the same basis as the Term Loans by Section 2.21, Section 2.22 or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the LendersSection 6.01(j).
Appears in 1 contract
Samples: Credit Agreement (Edwards Group LTD)
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Lender or any Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the Issuing Bank Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower the Borrowers or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any a Borrower or any other Loan Party in any case shall entitle such Person the Borrowers to any other or further notice or demand in similar or other circumstances.
(b) Except as provided . Notwithstanding anything to the contrary contained herein or in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant the authority to an agreement enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or agreements in writing entered into by each party thereto and the Administrative Agent, as applicableany of them shall be vested exclusively in, and consented to by all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Required LendersAgents in accordance with Sections 7.02 and 7.03 for the benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (i) the Agent from exercising on their own behalf the rights and remedies that inure to its benefit (solely in its capacity as an Agent) hereunder and under the other Loan Documents, (ii) any Issuing Bank from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank) hereunder and under the other Loan Documents, (iii) any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender) hereunder and under the other Loan Documents, (iv) any Lender from exercising setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.17), or (v) subject to Section 8.11, any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Insolvency Law.
(b) Any amendment or waiver of any provision of this Agreement or any other Loan Document (other than the Fee Letter or any Letter of Credit Document), and any consent to any departure by a Borrower or any other Loan Party therefrom, shall be effective if the same shall be in writing and signed by the Required Lenders and the Borrowers (or by the Administrative Agent (with the prior written consent of the Required Lenders) and the Borrowers), provided that such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided further that (x) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing signed by the Administrative Agent and the U.S. Borrower to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, and (y) no such agreement amendment, waiver or consent shall:
(i) decrease extend the Maturity Date of or forgive increase the stated amount of any Commitment of any Lender or reinstate any Commitment of any Lender terminated pursuant to the terms hereof without the written consent of such Lender;
(ii) postpone any date fixed by this Agreement for any scheduled payment (but not any prepayment) of principal, interest or fees due to any Lender hereunder without the written consent of such Lender;
(iii) reduce the principal amount of, or extend the final maturity of, or decrease the rate of interest specified herein on, any Loan or any L/C Disbursement, Disbursement or any interest or Fees payable hereunder without the prior written consent of each Lender directly affected thereby; provided thereby (it being understood and agreed that any amendment to change in the financial covenant definition of “Leverage Ratio”, or in the component definitions in this Agreement thereof, shall not constitute a reduction in the of rate of interest for purposes of this clause or any interest or Fees payable hereunder); provided, however, that (i),
(iiA) increase or extend only the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments U.S. Required Revolving Lenders shall not constitute an increase be required to waive any obligation of the Commitments U.S. Borrower to pay default interest pursuant to Section 2.07 with respect to the U.S. Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith (B) only the consent of any Lender),
(iii) extend or the Canadian Required Revolving Lenders shall be required to waive any obligation of either Canadian Borrower to pay default interest pursuant to Section 2.07 with respect to the Canadian Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith, (C) only the consent of the Australian Required Revolving Lenders shall be required to waive any obligation of the Australian Borrower to pay default interest pursuant to Section 2.07 with respect to the Australian Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith, and (D) only the consent of the Required U.S. Term Lenders shall be required to waive any obligation of the U.S. Borrower to pay default interest pursuant to Section 2.07 with respect to the U.S. Term Loan Installment Date Facility, including with respect to any amount payable thereunder or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,in connection therewith;
(iv) amend or modify the provisions of change Section 2.18(b) or (c) 2.16 in a manner that would by its terms alter the pro rata sharing of payments required thereby, thereby without the prior written consent of each Lender adversely affected thereby,thereby or change the order of application, as among the Facilities, of any prepayment or other amount specified in Section 7.05 from the order set forth in such Section in a manner that materially and adversely affects the Lenders under any Facility without the prior written consent of (A) if such Facility is the U.S. Term Loan Facility, the Required U.S. Term Lenders, (B) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders, (C) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Lenders and (D) if such Facility is the Australian Revolving Credit Facility, the Required Australian Lenders;
(v) amend or modify the provisions change any provision of this Section Section, or the percentage specified in definition of the terms “Required Lenders,” “Majority Required U.S. Revolving Lenders,” “Required Canadian Lenders,” “Required Australian Lenders,” “Required Revolving Lenders,” or “Required U.S. Term Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waiveamend, amend waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely directly affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orthereby;
(vi) except as expressly permitted hereunder or under any Security Document, (A) release the guaranty provided by the U.S. Borrower hereunder without the written consent of each Canadian Lender, or (B) release all or substantially all of the Collateral value of the guaranties provided by the other Guarantors hereunder or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests Collateral without the written consent of such Subsidiary Loan Party is sold or otherwise disposed of each Lender;
(vii) change Section 9.04 in a transaction permitted by this Agreement, manner that imposes additional restrictions on the ability of any Lender under any Facility to assign any of its rights or obligations hereunder without the prior written consent of each Lender(A) if such Facility is the U.S. Term Loan Facility, the Required U.S. Term Lenders, (B) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders, (C) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Lenders and (D) if such Facility is the Australian Revolving Credit Facility, the Required Australian Lenders;
(viii) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding one Class of Loans differently from the rights in respect of payments due to Lenders holding another Class of Loans without the prior written consent of the Required U.S. Revolving Lenders (if the U.S. Revolving Lenders are the adversely affected Class), Required U.S. Term Lenders (if the U.S. Term Lenders are the adversely affected Class), Required Canadian Lenders (if the Canadian Lenders are the adversely affected Class) or Required Australian Lenders (if the Australian Lenders are the adversely affected Class); provided further or
(ix) amend or modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(g) without the written consent of such SPC, provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Agent, an Issuing Bank or a Swing Line Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the such Agent, Issuing Bank acting as such at or Swing Line Lender, respectively. Notwithstanding anything to the effective date of such agreementcontrary herein, as applicable. Each no Defaulting Lender shall be bound by have any waiverright to approve or disapprove any amendment, amendment waiver or modification authorized by this Section 9.08 consent hereunder or under any other Loan Document (and any amendment, waiver or consent which by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without its terms requires the consent of all Lenders, all Lenders or a majority in interest of Lenders under any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, Facility or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement each affected Lender may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made effected with the consent of the Borrowers and the Administrative Agent applicable Lenders other than Defaulting Lender); provided that any such amendment, waiver or consent referred to the extent necessary to in clause (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loansb)(i), as applicable and (ii) cure or (iii) above that, but for this sentence, would require the prior written consent of such Defaulting Lender, will continue to require the consent of such Defaulting Lender; and provided further that any ambiguitysuch amendment, omissionwaiver or consent requiring the consent of all Lenders, mistake, defect such Lender or inconsistency, each affected Lender that by its terms affects any Defaulting Lender more adversely than any other Lender whose consent is so required shall require the consent of such Defaulting Lender. No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersit under Hedging Agreements or Banking Services Obligations.
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Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New an Incremental Term Loan AmendmentAmendment or as provided in Section 2.14(c), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that neither (A) any amendment to the financial covenant definitions in this Agreement shall not (or defined terms used in the financial covenants in this Agreement) or (B) any amendment entered into pursuant to the terms of Section 2.14(c) shall, in either case of the foregoing clauses (A) and (B) constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) (x) release the Company from its obligations under Article X, (y) release all or substantially all the Collateral or (z) release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent or Agent, the Issuing Bank or the Swingline Lender acting as such at the effective date of such agreement, as applicableapplicable (it being understood that any change to Section 2.23 shall require the consent of the Administrative Agent, the Issuing Bank and the Swingline Lender). Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this clause (b) and then only in the event such Defaulting Lender shall be adversely affected by such amendment, waiver or other modification. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Incremental Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Incremental Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Incremental Term Commitments Loans or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
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Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(ba) Except as provided in Subject to Section 2.20 with respect to a New Term Loan Amendment2.14(b) and Section 9.08(e) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Loan Parties and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each Loan Party party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest (except as provided in the definition of “Applicable Margin” or as provided in Section 2.14) on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the latest Maturity Date in effect for the Revolving Facility Commitments of the applicable Class (except as provided in Section 2.05(c)), without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (imake such modification),;
(ii) increase or extend the Commitment of any Lender Lender, or decrease the Commitment Fees or (except as provided in the definition of “Applicable Commitment Fee”), L/C Participation Fees or any other fees Fees of any Lender Lender, without the prior written consent of such Lender (it being understood which, notwithstanding the foregoing, such consent of such Lender shall be the only consent required hereunder to make such modification); provided that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender directly adversely affected thereby,thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification);
(iv) amend or modify the provisions of Section 2.18(b) or (c) 7.02 in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification), except as provided in Sections 9.08(d) and (e);
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” ”, “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orexcept as provided in Sections 9.08(d) and (e);
(vi) release the Borrower or all or substantially all of the Collateral or release any Subsidiary Loan Party Parties from its Guarantee their respective Guaranties under a Collateral Agreement, this Agreement unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary any Loan Party is sold or otherwise disposed (other than the Borrower), such entity ceases to constitute a Loan Party as a result of in a transaction permitted by this Agreementnot prohibited hereunder on the date hereof, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed), except as provided in Section 9.08(e);
(viii) amend or modify the definition of “Revolving Facility Percentage” without the written consent of all Revolving Facility Lenders; or
(ix) amend or modify any condition in Section 4.01 without the written consent of the Majority Lenders participating in the adversely affected Facility; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, Swingline Lender or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent, Swingline Lender or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee Assignee of such Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have the right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be affected with the consent of the applicable Lenders other than Defaulting Lenders), except that (w) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender, (x) the principal amount of any Loan or any L/C Disbursement may not be decreased or forgiven without the consent of such Lender, (y) the rate of interest (except as provided in the definition of “Applicable Margin” or as provided in Section 2.14) on any Loan or any L/C Disbursement may not be decreased without the consent of such Lender and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms disproportionately adversely affects any Defaulting Lender relative to other affected Lenders shall require the consent of such Defaulting Lender.
(cb) Without the consent of any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral (including any Letter of Credit Support (provided, however, that, with respect to any Letter of Credit Support relating to any Continuing Letter of Credit, consent of the applicable Issuing Bank shall be required)) or additional property to become Collateral for the benefit of the Secured Lender Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Lender Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(dc) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit to be outstanding hereunder from time to time outstanding thereunder and the accrued interest and fees and other obligations in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees and other obligations in respect thereof and (bii) to include appropriately the Lenders holding holders of such extensions of credit facilities in any determination of the requisite lenders required hereunder, including the Required Lenders; provided that, notwithstanding anything to the contrary set forth in this Agreement or in any other Loan Document, any Collateral (including any Letter of Credit Support) that is delivered to the Administrative Agent (or to the applicable Issuing Bank, in the case of Letter of Credit Support relating to any Continuing Letter of Credit) to support certain Obligations in accordance of the terms hereof shall be held solely for the benefit of the Lender Parties to whom such Obligations are owed and shall not be shared with any other Lender Parties at any time that such Obligations remain outstanding.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A) to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistencyinconsistency or (B) to integrate any Incremental Commitments in a manner consistent with Section 2.21, including, with respect to Other Revolving Loans (and Commitments with respect thereto), as may be necessary to establish such Other Revolving Loans (and Commitments with respect thereto) as a separate Class or tranche from the existing Loans or Commitments.
(e) With respect to the extent incurrence of any secured or unsecured Indebtedness, the Borrower may elect (in its discretion, but shall not be obligated) to deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower or of its general partner, as applicable, at least three Business Days prior to the incurrence thereof (or such cure could not shorter time as the Administrative Agent may agree in its reasonable discretion), together with either drafts of the material documentation relating to such Indebtedness or a description of such Indebtedness (including a description of the Liens intended to secure the same or the subordination provisions thereof, as applicable) in reasonably sufficient detail to be expected able to have a material adverse effect on make the Lendersdeterminations referred to in this paragraph, which certificate shall state that the Borrower or its general partner, as applicable, has determined in good faith that such Indebtedness satisfies the requirements of the applicable provisions of Sections 6.01 (taking into account any other applicable provisions of this Section 9.08), in which case such certificate shall be conclusive evidence thereof.
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Waivers; Amendment. (a) No failure or delay of the Administrative Agent, any Lender or the Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended amended, supplemented or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (yor the Administrative Agent, with the consent of the Required Lenders) (and, prior to the Completion of the Primary Syndication of the Commitments, the Arrangers) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto the Administrative Agent and the Administrative AgentLoan Party or Loan Parties that are parties thereto, as applicable, and consented to by in each case with the written consent of the Required LendersLenders (and, prior to the Completion of the Primary Syndication of the Commitments, the Arrangers); provided, however, that (x) the Borrower and the Administrative Agent may enter into an amendment to effect the provisions of Section 2.23(b) or 2.24(b) upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as the case may be (and any such amendment shall in any event be deemed to have occurred upon such effectiveness), and (y) no such agreement shall
under this Section 9.8(b) shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any interest on any Loan or any date for reimbursement of an L/C Disbursement, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase or extend the Commitment or decrease or extend the date for payment of any Lender Fees of or decrease the Commitment Fees or L/C Participation Fees or any other fees of amount actually due and payable hereunder to any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend amend or waive modify the pro rata requirements of Sections 2.16 and 2.17, the provisions of this Section, or release any Term Loan Installment Date Guarantor party to the Guarantee and Collateral Agreement (except as contemplated by this Agreement) or reduce limit such Guarantor’s liability under the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueGuarantee and Collateral Agreement, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or modify change the provisions (including Sections 2.12 and 2.13 of Section 2.18(bthis Agreement) or (c) of any Loan Document in a manner that would by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (v) release all or a substantial portion of the Collateral from the Liens of the Security Documents or alter the pro rata sharing relative priorities of payments required therebythe Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations or as contemplated by Section 9.18), in each case without the written consent of each Lender, (vi) reduce the percentage contained in the definition of the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans Term Loan Commitments and Revolving Credit Commitments are included on the Closing Date), or
date hereof) or (vivii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each LenderLender directly affected thereby, amend the definition of the term “Interest Period” in any way which would permit Interest Periods to be in excess of six months; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Issuing Bank or the Swingline Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or Agent, the Issuing Bank acting as such at or the effective date Swingline Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such agreement, as applicable. Each Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral excluded for the benefit a vote of the Secured Parties, or as required by local law to give effect to, or protect Lenders hereunder requiring any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders).
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Knoll Inc)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank any Agent or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank each Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders Lenders, and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, applicable Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, on any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend decrease the Commitment fees of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender Agent without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentAgent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender)as applicable,
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 5.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date)thereby, or
(vi) release all or substantially all the Collateral or release any of the Borrower or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative any Agent or the Issuing Bank hereunder without the prior written consent of the Administrative such Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a1) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b2) belowof this Section 10.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b2) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except:
(xa) as provided in Sections 2.21, 2.22, 2.23 and 10.20;
(b) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders and (yor after the Discharge of ABL Revolving Claims, the Required Term Lenders); and
(c) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders (or after the Discharge of ABL Revolving Claims, the Required Term Lenders); provided, however, that that, except as provided in Sections 2.21, 2.22, 2.23 and 10.20, no such agreement shallwill:
(i) decrease decrease, forgive, waive or forgive excuse the principal amount of, or any interest on, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender adversely directly affected thereby; , except as provided that any amendment in Section 2.05(3) with respect to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate expiration of interest for purposes Letters of this clause (i),Credit;
(ii) increase or extend the Commitment or ABL Term Loan Commitment of any Lender or decrease decrease, waive or excuse the Commitment Fees or L/C Participation Fees or other fees of any Lender Lender, Agent or Issuing Bank without the prior written consent of such Lender Lender, Agent or Issuing Bank (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments or ABL Term Loan Commitments shall not constitute an increase of the Commitments or ABL Term Loan Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of principal or interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) 2.18 of this Agreement, Section 5.2 of the Collateral Agreement or (c) any analogous provision of any other Loan Document, in a manner that would by its terms alter the pro rata sharing of payments required therebythereby or the relative priorities of such payments, without the prior written consent of each Lender adversely affected thereby,;
(v) change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the Borrower Parties would be increased, or increase any of the percentages set forth in the definition of “Borrowing Base”, without the prior written consent of Lenders which would constitute the Required Lenders if the percentage “50.0%” contained in the definition thereof were changed to “66-2/3%” (such Lenders, the “Supermajority Lenders”); provided that the foregoing shall not limit the ability of the Administrative Agent to implement, change or eliminate any Reserves in its Reasonable Credit Judgment as permitted hereunder without the prior written consent of any Lenders;
(vi) amend or modify the provisions of this Section 10.08 or the definition of the terms term “Supermajority Lenders”, “Required Lenders,” ”, or “Majority Required Term Lenders” ”, as the case may be, or any other provision hereof specifying the number or percentage of Supermajority Lenders, Required Lenders or Required Term Lenders, as the case may be, required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby applicable Lender;
(it being understood that, with the consent vii) release a material portion of the Required LendersCollateral (or subordinate the Liens in favor of the Administrative Agent on a material portion of the Collateral), additional extensions of credit unless pursuant to a transaction permitted by this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date)Agreement, or
(vi) release all or substantially all the Collateral or release any of Holdings, any Borrower Party or any other Subsidiary Loan Party from its Guarantee their respective obligations as a Borrower Party or Subsidiary Loan Party under a this Agreement or from their respective Guarantees under the Collateral AgreementAgreement (as applicable), unless, in the case of a Subsidiary Loan PartyParty (other than the Borrower), all or substantially all the Equity Interests of such Subsidiary Loan Party is are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender;
(viii) increase the aggregate Revolving Facility Commitments, other than as provided in Section 2.21, without the prior written consent of each Revolving Lender; or
(ix) at any time when there is outstanding more than one tranche of Loans, amend, modify or waive any provision of this Agreement which adversely impacts one or more tranches in a manner different than that which applies to one or more other tranches, without the consent of Lenders holding a majority of each tranche of such adversely affected Loans; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c3) Without the consent of the Administrative Agent or any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d4) Notwithstanding the foregoing, anything in this Agreement may be amended (or amended and restated) with any other Loan Document to the written consent of the Required Lenderscontrary, the Administrative AgentBorrower may enter into Incremental Facility Amendments in accordance with Section 2.21, Refinancing Amendments in accordance with Section 2.22, Extension Amendments in accordance with Section 2.23, and such Incremental Facility Amendments, Refinancing Amendments and Extension Amendments shall be effective to amend the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits terms of this Agreement and the other applicable Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees Documents, in respect thereof and (b) each case, without any further action or consent of any other party to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersLoan Document.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f5) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to integrate (ia) integrate any New Term Commitments or New Revolving Facility Incremental Commitments on substantially the same basis as the Revolving Loans or (b) any ABL Term Loans or ABL Term Loan Commitments, subject to the FILO Intercreditor Provisions and the express terms hereof as they relate to ABL Term Loans or ABL Term Loan Commitments and ABL Term Lenders.
(6) Notwithstanding the foregoing, no consent of any Defaulting Lender will be required other than with respect to any amendment or waiver set forth in clauses (a) through (c) of Section 10.08(2) that directly and adversely affects such Lender.
(7) Prior to the Discharge of ABL Revolving Facility LoansClaims, any amendment, modification, termination or waiver of or consent with respect to any provision of this Agreement solely affecting the ABL Term Lenders will be in writing and signed by the Administrative Agent and the Required Term Lenders. Prior to the Discharge of ABL Revolving Claims, it is understood that no Term Lender will have any voting or consent rights under, or with respect to, any Loan Document other than as applicable and expressly provided herein.
(ii) 8) Notwithstanding the foregoing, the Administrative Agent, with the consent of the Borrower, may amend, modify or supplement any Loan Document without the consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity, omission, mistake, inconsistency or defect or inconsistencycorrect any typographical error or other manifest error in any Loan Document, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Document if the extent such cure could same is not reasonably be expected objected to have a material adverse effect on in writing by the LendersRequired Lenders within five Business Days following receipt of notice thereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (Neiman Marcus Group LTD Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Company and the Required Lenders (or, in respect of any waiver, amendment or modification of Section 6.10, the Majority Lenders under the Revolving Facility rather than the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lendersprovided for therein; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is fees payable hereunder are due, without the prior written consent of each Lender directly and adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c2.18(c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender directly and adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Restatement Effective Date), or,
(vi) release all or substantially all the Collateral or release any Holdings, the Company, CALLC or all or substantially all of the other Subsidiary Loan Party Parties from its Guarantee under a the U.S. Collateral Agreement, as applicable, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each LenderLender adversely affected thereby,
(vii) effect any waiver, amendment or modification that by its terms directly adversely affects the rights in respect of payments or collateral of Lenders participating in any Class differently from those of Lenders participating in other Classes, without the consent of the Majority Lenders participating in the adversely affected Class (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further or
(viii) convert the currency of any Loan or any Commitment, without the prior written consent of the Lender holding such Loan or Commitment; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, the Deposit Bank or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent, the Deposit Bank or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of either Joint Lead Arranger, the Deposit Bank or any Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans, the CL Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Celanese CORP)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Syndication Agent, Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term B Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term B Loans (as defined below) to permit the refinancing of all outstanding Term B Loans (“Refinanced Term B Loans”) with a replacement “B” term loan tranche hereunder which shall be Loans hereunder (“Replacement Term B Loans”); provided that (a) the aggregate principal amount of such Replacement Term B Loans shall not exceed the aggregate principal amount of such Refinanced Term B Loans, (b) the Applicable Margin for such Replacement Term B Loans shall not be higher than the Applicable Margin for such Refinanced Term B Loans, (c) the weighted average life to maturity of such Replacement Term B Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term B Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term B Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term B Loans than, those applicable to such Refinanced Term B Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term B Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower Borrower, or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party Holdings in any case shall entitle such Person any Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrowers, Holdings and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative AgentAgent and each Loan Party (to the extent such Loan Party is a party thereto), as applicable, and consented to by in each case with the consent of the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any interest on any Loan or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) except as provided in Section 2.24, increase or extend the Commitment or decrease or extend the date for payment of any Lender Fees (or decrease the Commitment Fees or L/C Participation Fees or other fees any prepayment premium set forth in Section 2.12) of any Lender without the prior written consent of such Lender (it being understood Lender; provided that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments foregoing shall not constitute an increase of the Commitments of any Lender),
apply to extensions effected in accordance with Section 2.22, (iii) extend amend or waive any Term Loan Installment Date modify the pro rata requirements of Section 2.17 or reduce the amount due on any Term Loan Installment Date sharing of payments provisions of Section 2.18 or extend any date on which payment the provisions of interest on any Loan this Section or any L/C Disbursement release all or any Fees is duesubstantially all of the value of the Guarantees under the Security Documents or all or substantially all of the Collateral, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (v) modify the protections afforded to an SPC pursuant to the provisions of Section 2.18(b9.04(i) without the written consent of such SPC or (cvi) reduce the percentage contained in a manner that would by its terms alter the pro rata sharing definition of payments required thereby, the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Term Loan Commitments are included on the Closing Datedate hereof), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at Collateral Agent. Notwithstanding the effective date of such agreementforegoing, as applicable. Each Lender shall any Loan Document may be bound by any waiver, amendment amended or modification authorized by this Section 9.08 and any consent by any Lender modified pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without an agreement or agreements in writing entered into by the Administrative Agent and the Borrowers and each other Loan Party that is a party thereto, without the consent of any Lenderof the Lenders, the Loan Parties and the Administrative Agent may (in their respective sole discretion, if such amendment or shall, modification is beneficial to the extent required by Lenders (or the Lenders holding Loans or Commitments of any Class) and does not adversely affect the rights or obligations of any Lender under any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Waivers; Amendment. (a1) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b2) belowof this Section 10.08, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b2) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except:
(xa) as provided in Sections 2.21, 2.22 and 10.20;
(b) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders and Lenders, a copy of which shall be promptly provided to the Administrative Agent (yprovided that any failure to deliver such copy shall not invalidate such waiver, amendment or modification); and
(c) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that that, except as provided in Sections 2.21, 2.22 and 10.20, no such agreement shallwill:
(i) decrease decrease, forgive, waive or forgive excuse the principal amount of, or any interest (except in connection with the waiver of the applicability of default interest (which waiver shall be effective with the written consent of the Required Lenders)) on, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender adversely directly affected thereby; , except as provided in Section 2.05(3) with respect to the expiration of Letters of Credit (it being acknowledged and agreed that any amendment amendments to the financial covenant definitions in this Agreement or waivers of conditions precedent, Defaults or Events of Default or mandatory prepayments shall not constitute a reduction in the rate decrease, forgiveness, waiver or excuse of interest for purposes of or a principal payment under this clause (i),);
(ii) increase or extend the Commitment of any Lender or decrease decrease, waive or excuse the Commitment Fees or L/C Participation Fees or other fees of any Lender Lender, Agent or Issuing Bank without the prior written consent of such Lender Lender, Agent or Issuing Bank (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default Default, mandatory prepayments or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any LenderLender or a waiver or excuse of any fees),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of principal or interest (other than default interest) on any Loan or any L/C Disbursement or any Fees is duedue (it being acknowledged and agreed that any amendments to or waivers of conditions precedent, Defaults or Events of Default or mandatory prepayments shall not constitute an extension of a date on which a payment is due for purposes of this clause (iii)), without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) 2.18 of this Agreement, Section 5.02 of the Collateral Agreement or (c) any analogous provision of any of this Agreement or any other Loan Document, in a manner that would by its terms alter the pro rata sharing of payments required therebythereby or the relative priorities of such payments, without the prior written consent of each Lender adversely affected thereby,;
(v) change the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts available to be borrowed by the applicable Borrowers would be increased, or increase any of the percentages set forth in the definition of “Borrowing Base” without the prior written consent of the Supermajority Revolving Lenders; provided that the foregoing shall not limit the ability of the Administrative Agent to implement, change or eliminate any Reserves in its Reasonable Credit Judgment as permitted hereunder without the prior written consent of any Lenders;
(vi) amend or modify the provisions of this Section 10.08 or the definition definitions of the terms “Supermajority Revolving Lenders” or “Required Lenders,” “Majority Lenders” ”, as the case may be, or any other provision hereof specifying the number or percentage of Lenders any such required group of Lenders, as the case may be, required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orapplicable Lender;
(vivii) release all or substantially all of the Collateral Collateral, or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests value of such Subsidiary Loan Party is sold or otherwise disposed the Guarantee of the Obligations without the prior written consent of each Lender;
(viii) increase the aggregate Revolving Facility Commitments other than as provided in a transaction permitted by this AgreementSection 2.21, without the prior written consent of each Revolving Lender; or
(ix) at any time when there is outstanding more than one tranche of Loans, amend, modify or waive any provision of this Agreement which adversely impacts one or more tranches in a manner different than that which applies to one or more other tranches, without the consent of Lenders holding a majority of each tranche of such adversely affected Loans; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c3) Without the consent of the Administrative Agent or any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d4) Notwithstanding the foregoing, anything in this Agreement or any other Loan Document to the contrary, (i) the Borrowers may be amended (or amended and restated) enter into Incremental Facility Amendments in accordance with the written consent of the Required LendersSection 2.21, the Administrative AgentExtension Amendments in accordance with Section 2.22, and such Incremental Facility Amendments and Extension Amendments shall be effective to amend the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits terms of this Agreement and the other applicable Loan Documents with the Term Loans Documents, in each case, without any further action or consent of any other party to any Loan Document, and the (ii) any increase in any Revolving Facility Loans Commitments and any renewal or extension of the accrued interest and fees in respect Maturity Date thereof and (b) shall be subject to include appropriately the due diligence of the Lenders thereof.
(5) Notwithstanding the foregoing, any amendment or waiver that by its terms affects the rights or duties of Lenders holding such credit facilities Loans or Commitments of a particular Class (but not the rights or duties of Lenders holdings Loans or Commitments of any other Class) will require only the requisite percentage in any determination interest of the Required affected Class of Lenders that would be required to consent thereto if such Class of Lenders were the only Class of Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f6) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Incremental Commitments on substantially the same basis as the Term Loans Revolving Loans.
(7) Notwithstanding the foregoing, no consent of any Defaulting Lender will be required other than with respect to any amendment or Revolving Facility Loanswaiver set forth in clauses (a) through (c) of Section 10.08(2) that directly and adversely affects such Lender.
(8) Notwithstanding the foregoing, as applicable and (ii) the Administrative Agent, with the consent of the Borrowers, may amend, modify or supplement any Loan Document without the consent of any Lender or the Required Lenders in order to correct, amend or cure any ambiguity, omission, mistake, inconsistency or defect or inconsistencycorrect any typographical error or other manifest error in any Loan Document, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof. Furthermore, notwithstanding anything to the extent such cure could not contrary herein, with the consent of the Administrative Agent at the request of the Borrowers (without the need to obtain any consent of any Lender), any Loan Document may be amended to add terms that are favorable to the Lenders (as reasonably be expected to have a material adverse effect on determined by the LendersAdministrative Agent).
Appears in 1 contract
Samples: Loan Agreement (Ulta Beauty, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Agent or any Lender in exercising any power or right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that which they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto the Administrative Agent and the Administrative AgentBorrower, as applicable, and consented to by in each case with the consent of the Required Lenders; provided, however, that (subject to Section 2.28 in the case of Permitted Amendments) no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend (other than as contemplated in Section 2.16) the final maturity of, of or decrease any scheduled principal payment date or date for the rate payment of any interest on, any Loan or fees, or waive or excuse any L/C Disbursementsuch payment or any part thereof, without or decrease any fees or the rate of interest on any Loan (other than (A) interest or fees arising in connection with the occurrence of an Event of Default, or (B) the fee described in Section 9.04(b)), without, in each case, the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase or extend the any Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of the Lender holding such Lender Commitment (it being understood that waivers a waiver of any Default or modifications of conditions precedent, covenants, Defaults or Events Event of Default or of a mandatory reduction in the aggregate Commitments shall not constitute such an increase of the Commitments of any Lenderincrease),
, (iii) extend or waive any Term release the Borrower from its obligations under the Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, Documents without the prior written consent of each Lender adversely affected thereby,
Lender, or (iv) amend or modify the provisions of Section 2.18(b) 2.11(b), Section 2.12, the provisions of this Section 9.08(b), the definition of the “Required Lenders”, any other provision of this Agreement that expressly provides that the consent of all Lenders is required or (c) any other provisions requiring payment to be made for the ratable account of the Lenders, without, in a manner that would by its terms alter the pro rata sharing of payments required therebyeach case, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the Issuing Bank acting as such at consent of all Lenders or each affected Lender may be effected with the effective date consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such agreement, as applicable. Each Lender shall be bound by and (y) any waiver, amendment or modification authorized requiring the consent of all Lenders or each affected Lender that by this Section 9.08 and its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Defaulting Lender.
(c) Without Anything herein to the consent of any Lendercontrary notwithstanding, the Loan Parties but subject to Section 2.17(a) and (c), if the Administrative Agent may (in their respective sole discretionand the Borrower have jointly identified an ambiguity, omission, mistake or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest defect in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provision of this Agreement and or the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination or an inconsistency between a provision of this Agreement and/or a provision of the Required Lenders.
(e) In additionother Loan Documents, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent and the Borrower shall be permitted to the extent necessary amend such provision to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any such ambiguity, omission, mistake, defect or inconsistency, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document if the Required Lenders do not provide the Administrative Agent with written notice of objection to such amendment within ten Business Days following receipt of notice thereof.
(d) Notwithstanding anything to the contrary in this Section 9.08, the Administrative Agent and the Borrower may, without the consent of any Lender, (x) enter into amendments or modifications to this Agreement or any of the other Loan Documents or (y) enter into additional Loan Documents, in each case, as the Administrative Agent reasonably deems appropriate in order to implement any Benchmark Replacement or any Conforming Changes or otherwise effectuate the terms of Section 2.17(c) in accordance with the terms of Section 2.17(c).
(i) If the Required Lenders (as defined in the Revolving Credit Agreement) agree in writing to amend, modify, waive or restate any of the terms of the Revolving Credit Agreement relating to reporting requirements, representations and warranties, affirmative covenants, negative covenants, financial covenants, changes in GAAP, events of default and associated definitions (the “Revolving Credit Agreement Provisions”) (which may include a written waiver of an existing actual or potential default or event of default that is intended to be eliminated by such amendment, modification, waiver or restatement) (each of the foregoing, a “Revolving Credit Agreement Modification”), then (A) except to the extent such cure could Lender has provided written notice to the Borrower that the terms of this Section 9.08(e)(i)(A) do not reasonably apply to such Lender’s agreement to such Revolving Credit Agreement Modification, any Lender that is also (or whose Affiliate is) a “Lender” under the Revolving Credit Agreement who affirmatively agreed to such Revolving Credit Agreement Modification shall be expected deemed to have consented to a material adverse effect on corresponding amendment, modification, waiver or restatement of the terms of this Agreement corresponding to the Revolving Credit Agreement Provisions amended, modified, waived or restated by the Revolving Credit Agreement Modification (a “Corresponding Modification”) and (B) if the Lenders described in clause (A) above constitute the Required Lenders, then, unless the Borrower notifies the Administrative Agent that this Agreement shall not require a Corresponding Modification, simultaneously with the effectiveness of such Revolving Credit Agreement Modification, the applicable provisions of this Agreement shall be deemed automatically amended, modified or restated, or such waiver, consent or approval granted, pursuant to a Corresponding Modification in a manner consistent with the Revolving Credit Agreement Modifications under the Revolving Credit Agreement. If requested by the Borrower or the Administrative Agent, the Borrower, the Administrative Agent and each approving Lender (including any Lender deemed to have approved as described above) shall execute and deliver a written amendment to, restatement of, or waiver, consent or approval under, this Agreement memorializing such modification, restatement, waiver, consent or approval. Notwithstanding anything to the contrary in this subsection, the terms of this subsection shall not apply to any modification, restatement, waiver, consent or approval regarding any of the matters described in Section 9.08(b).
(ii) At any time that the Administrative Agent is not a “Lender” under the Revolving Credit Agreement, the Borrower agrees to provide the Administrative Agent with (x) a copy of all draft documents distributed to the “Lenders” under the Revolving Credit Agreement with respect to the Revolving Credit Agreement Modification promptly upon such distribution and (y) a final, executed copy of each document in respect of each Revolving Credit Agreement Modification.
Appears in 1 contract
Samples: Senior Unsecured Credit Agreement (Choice Hotels International Inc /De)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Subject to Section 2.20 with respect to a New Term Loan Amendment2.24 and Sections 9.08(e) and (g) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Loan Parties and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each Loan Party party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest (except as provided in the definition of “Applicable Margin” or as provided in Section 2.14 or Section 2.25) on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the latest Maturity Date in effect for the Revolving Facility Commitments of the applicable Class (except as provided in Section 2.05(c)), without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (imake such modification),;
(ii) increase or extend the Commitment of any Lender Lender, or decrease the Commitment Fees (except as provided in the definition of “Applicable Commitment Fee” or Section 2.25), L/C Participation Fees (except as provided in Section 2.25) or any other fees Fees of any Lender Lender, without the prior written consent of such Lender (it being understood which, notwithstanding the foregoing, such consent of such Lender shall be the only consent required hereunder to make such modification); provided that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender directly adversely affected thereby,thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification);
(iv) amend or modify the provisions of Section 2.18(b) or (c) 7.02 in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification), except as provided in Sections 9.08(d) and (e);
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” ”, “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orexcept as provided in Sections 9.08(d) and (e);
(vi) release the Borrower or all or substantially all of the Collateral or release any Subsidiary Loan Party Parties from its Guarantee their respective Guaranties under a Collateral Agreement, this Agreement unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary any Loan Party is sold or otherwise disposed (other than the Borrower), such entity ceases to constitute a Loan Party as a result of in a transaction permitted by this Agreementnot prohibited hereunder on the date hereof, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed), except as provided in Section 9.08(e);
(viii) amend or modify the definition of “Revolving Facility Percentage” without the written consent of all Revolving Facility Lenders; or
(ix) amend or modify any condition in Section 4.01 without the written consent of the Majority Lenders participating in the adversely affected Facility; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, Swingline Lender or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent, Swingline Lender or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee Assignee of such Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have the right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be affected with the consent of the applicable Lenders other than Defaulting Lenders), except that (w) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender, (x) the principal amount of any Loan or any L/C Disbursement may not be decreased or forgiven without the consent of such Lender, (y) the rate of interest (except as provided in the definition of “Applicable Margin” or as provided in Section 2.14) on any Loan or any L/C Disbursement may not be decreased without the consent of such Lender and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms disproportionately adversely affects any Defaulting Lender relative to other affected Lenders shall require the consent of such Defaulting Lender.
(c) Without the consent of any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral (including any Letter of Credit Support (provided, however, that, with respect to any Letter of Credit Support relating to any Continuing Letter of Credit, consent of the applicable Issuing Bank shall be required)) or additional property to become Collateral for the benefit of the Secured Lender Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Lender Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit to be outstanding hereunder from time to time outstanding thereunder and the accrued interest and fees and other obligations in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees and other obligations in respect thereof and (bii) to include appropriately the Lenders holding holders of such extensions of credit facilities in any determination of the requisite lenders required hereunder, including the Required Lenders; provided that, notwithstanding anything to the contrary set forth in this Agreement or in any other Loan Document, any Collateral (including any Letter of Credit Support) that is delivered to the Administrative Agent (or to the applicable Issuing Bank, in the case of Letter of Credit Support relating to any Continuing Letter of Credit) to support certain Obligations in accordance of the terms hereof shall be held solely for the benefit of the Lender Parties to whom such Obligations are owed and shall not be shared with any other Lender Parties at any time that such Obligations remain outstanding.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A) to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistencyinconsistency or (B) to integrate any Incremental Commitments in a manner consistent with Section 2.21, including, with respect to Other Revolving Loans (and Commitments with respect thereto), as may be necessary to establish such Other Revolving Loans (and Commitments with respect thereto) as a separate Class or tranche from the existing Loans or Commitments.
(f) With respect to the incurrence of any secured or unsecured Indebtedness, the Borrower may elect (in its discretion, but shall not be obligated) to deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower or of its general partner, as applicable, at least three Business Days prior to the incurrence thereof (or such shorter time as the Administrative Agent may agree in its reasonable discretion), together with either drafts of the material documentation relating to such Indebtedness or a description of such Indebtedness (including a description of the Liens intended to secure the same or the subordination provisions thereof, as applicable) in reasonably sufficient detail to be able to make the determinations referred to in this paragraph, which certificate shall state that the Borrower or its general partner, as applicable, has determined in good faith that such Indebtedness satisfies the requirements of the applicable provisions of Sections 6.01 (taking into account any other applicable provisions of this Section 9.08), in which case such certificate shall be conclusive evidence thereof.
(g) Notwithstanding the foregoing, in order to implement an ESG Amendment in accordance with Section 2.25(a), this Agreement may be amended (or amended and restated) for such purpose (but solely to the extent such cure could not reasonably be expected necessary to have a material adverse effect on implement an ESG Amendment in accordance with Section 2.25(a)) by the Borrower, the Administrative Agent, the Sustainability Structuring Agent and the Required Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank any L/C Issuer or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank each L/C Issuer and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower Parent, Holdings, the Borrowers or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower Parent, Holdings, the Borrowers or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Sections 2.22, 2.23 and 2.24, (y) in the case of this Agreement, as may be required by the Intercreditor Agreement or pursuant to an agreement or agreements in writing entered into by Holdings, Parent, the Borrowers and the Administrative Agent (and consented to by the Required Lenders or, in the case of a waiver of the Financial Performance Covenant, each of the Revolving Facility Lenders or, in the case of an amendment or modification of the Financial Performance Covenant as it applies to any Facility, the Majority Lenders of such Facility), and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, or decrease any prepayment premium on, or decrease any fees or reimbursement obligations payable on any Loan or any L/C DisbursementObligation, extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly adversely affected therebythereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification); provided that any amendment a non-payment default waiver, waiver of default interest under Section 2.14(c) hereof, change to the a financial covenant definitions in this Agreement ratio or modification to Section 2.22(b)(iv)(B) hereof shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or (y) decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (which, notwithstanding the foregoing, in the case of clause (y), such consent of such Lender shall be the only consent required hereunder to make such modification) (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or Date, reduce the amount due on any Term Loan Installment Date Date, or extend any date on which payment of interest on any Loan or any L/C Disbursement Obligation or any Fees is duedue or increase the maximum duration of any Interest Period permitted hereunder, in each case, without the prior written consent of each Lender directly adversely affected therebythereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),
(iv) amend or modify the provisions of Section 2.18(b2.19(b), Section 2.19(c) or (c) Section 7.03, or any analogous provision of any Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify reduce the provisions voting rights of any Lender under this Section or the definition of the terms “Required Lenders,” “Majority Lenders” 9.08 or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each such Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Amendment Effective Date), or,
(vi) release all or substantially all of the Collateral or release any all or substantially all of the value of the guarantees by Parent, Holdings, the Borrowers or the Subsidiary Loan Party from its Guarantee under a Collateral AgreementParties, unless, in each case, to the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is extent sold or otherwise disposed of in a transaction permitted by this Agreement or the other Loan Documents or required by the Intercreditor Agreement, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment required by Section 2.12 so long as the application of any prepayment still required to be made is not changed); provided further provided, further, that (A) no such agreement amendment shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank an L/C Issuer hereunder without the prior written consent of the Administrative Agent or the Issuing Bank such L/C Issuer acting as such at the effective date of such agreementamendment, as applicable, (B) no amendment, waiver or consent shall amend, modify or waive any condition precedent to any extension of credit under the Revolving Facility set forth in Section 4.01 without the written consent of the Majority Lenders under such Revolving Facility (it being understood that (i) amendments, modifications or waivers of any other provision of any Loan Document, including any representation or warranty, any covenant or any Default or Event of Default, shall be deemed to be effective for purposes of determining whether the conditions precedent set forth in Section 4.01 have been satisfied regardless of whether the Majority Lenders under the Revolving Facility shall have consented to such amendment, modification or waiver and (ii) such consent of the Majority Lenders under the applicable Revolving Facility shall be the only consent required hereunder to make such modifications to the conditions precedent set forth in Section 4.01), and (C) only the consent of the Majority Lenders under the Revolving Facility shall be needed to amend, modify or waive the requirements of (including any Default), Section 6.10. Notwithstanding the foregoing, no consent of any Defaulting Lender shall be required for any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender, except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each directly and adversely affected Lender that by its terms materially and adversely affects any Defaulting Lender to a greater extent than other affected Lenders shall require the consent of such Defaulting Lender. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such Lender.
(c) Without the consent of any LenderLender or L/C Issuer, the Loan Parties and the Administrative Agent or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Parent, the Holdings and the Borrowers (ai) to add one or more additional credit or debit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents Docu ments with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit or debit facilities in any determination of the Required Lenders or Majority Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of Parent, the Holdings, the Borrowers and the Administrative Agent to the extent necessary (A) to (i) integrate any New Incremental Term Commitments Loans, any Incremental Revolving Loans, any Refinancing Term Loans or New any Replacement Revolving Facility Commitments Loans on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and applicable, or (iiB) to cure any ambiguity, omission, mistake, defect or inconsistency.
(f) Notwithstanding the foregoing, this Agreement may be amended, with the written consent of only each Revolving Facility Lender, the Administrative Agent, the Holdings and the Borrowers to the extent such cure could not reasonably be expected necessary to have a material adverse effect on the Lendersintegrate any Alternate Currency.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Company and the Required Lenders (or, in respect of any waiver, amendment or modification of Section 6.10, the Majority Lenders under the Revolving Facility rather than the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lendersprovided for therein; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is fees payable hereunder are due, without the prior written consent of each Lender directly and adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c2.18(c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender directly and adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Restatement Effective Date), or,
(vi) release all or substantially all the Collateral or release any Holdings, the Company, CALLC or all or substantially all of the other Subsidiary Loan Party Parties from its Guarantee under a the U.S. Collateral Agreement, as applicable, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each LenderLender adversely affected thereby,
(vii) effect any waiver, amendment or modification that by its terms directly adversely affects the rights in respect of payments or collateral of Lenders participating in any Class differently from those of Lenders participating in other Classes, without the consent of the Majority Lenders participating in the adversely affected Class (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further or
(viii) convert the currency of any Loan or any Commitment, without the prior written consent of the Lender holding such Loan or Commitment; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, the Deposit BankSwingline Lender or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent, the Deposit BankSwingline Lender or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Celanese Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative by any Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether any Agent, any Lender or the Issuing Bank may have had notice or demand on any Borrower or any other Loan Party in any case shall entitle knowledge of such Person to any other or further notice or demand in similar or other circumstancesDefault at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendmentparagraph (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended amended, supplemented or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicablethe Collateral Agent (in the case of any Security Document) and the Loan Party or Loan Parties that are parties thereto, and consented to by in each case with the written consent of the Required Lenders; provided, however, PROVIDED that no such agreement shall:
(i) decrease or forgive increase the Commitment of any Lender without the written consent of such Lender;
(ii) reduce the principal amount of, or extend the final maturity of, premium of any Loan or decrease LC Disbursement or reduce the rate of interest onthereon, or reduce any Loan Fees payable hereunder, or change the currency of payment of any L/C DisbursementObligation, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) postpone or extend the maturity of any Loan, or waive any scheduled date of payment of or the installment otherwise due on the principal amount of any Term Loan Installment Date under SECTION 2.09, or the required date of payment of any Reimbursement Obligation, or any date for the payment of any interest or fees payable hereunder, or reduce the amount due on of, waive or excuse any Term Loan Installment Date such payment (except interest payable under SECTION 2.06(c)), or extend postpone the scheduled date of expiration of any Commitment or postpone the scheduled date on which payment of interest on expiration of any Loan or any L/C Disbursement or any Fees is dueLetter of Credit beyond the Revolving Maturity Date, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(bchange SECTION 2.14(b) or (c) in a manner that would by its terms alter the pro rata PRO RATA sharing of payments or setoffs required thereby, without the prior written consent of each Lender adversely affected thereby,Lender;
(v) amend or modify change the provisions of this Section or percentage set forth in the definition of the terms “"Required Lenders,” “Majority Lenders” " or any other provision hereof of any Loan Document (including this Section) specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunderthereunder, without the prior written consent of each Lender (or each Lender of such Class, as the case may be);
(vi) release any Guarantor from its Guarantee (except as expressly provided in ARTICLE VII), or limit its liability in respect of such Guarantee, without the written consent of each Lender;
(vii) release all or a substantial portion of the Collateral from the Liens of the Security Documents or alter the relative priorities of the Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations), in each case without the written consent of each Lender;
(viii) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each affected thereby Class;
(it being understood that, with ix) without the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination Lenders and Term Loan Lenders holding more than 50% of the Required Lenders principal amount of the outstanding Term Loans, reduce the amount of, or extend the date of, any scheduled payment on substantially the same basis as Term Loans required to be made under SECTION 2.09, change the order of application of prepayments among Term Loans and Revolving Commitments are included on under SECTION 2.10(h) or change the Closing Date), application of prepayments of Term Loans set forth in SECTION 2.10(h) to the remaining scheduled amortization payments to be made thereon under SECTION 2.09; or
(vix) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of Term Loan Lenders holding more than 50% of the principal amount of each Lenderof the outstanding U.S. Term Loans and Canadian Term Loans, change the order of application of prepayments amounts of the U.S. Term Loans and the Canadian Term Loans under SECTION 2.10(h); provided further PROVIDED, FURTHER, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, the Issuing Bank hereunder or the Swingline Lender without the prior written consent of the Administrative Agent or Agent, the Issuing Bank acting as such at or the effective date of such agreementSwingline Lender, as applicable. Each Lender shall be bound by the case may be, (2) any waiver, amendment or modification authorized of this Agreement that by its terms affects the rights or duties under this Agreement of the Revolving Lenders (but not the Term Loan Lenders), the Term Loan Lenders (but not the Revolving Lenders), or one Class of Term Loan Lenders (but no other Lenders) may be effected by an agreement or agreements in writing entered into by the Borrowers and requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 9.08 if such Class of Lenders were the only Class of Lenders hereunder at the time, and (3) any waiver, amendment or modification prior to the completion of the primary syndication of the Commitments and Loans (as determined by the Administrative Agent) may not be effected without the written consent of the Administrative Agent. Notwithstanding the foregoing, any provision of this Agreement may be amended by any Lender pursuant to this Section 9.08 shall bind any assignee an agreement in writing entered into by the Borrowers, the Required Lenders and the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank and the Swingline Lender) if (x) by the terms of such Lenderagreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of, premium, if any, and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(c) Without If, in connection with any proposed change, waiver, discharge or termination of the provisions of this Agreement as contemplated by SECTION 11.02(b), the consent of any Lenderthe Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Loan Parties and Borrowers shall have the Administrative Agent may right to replace all, but not less than all, of such non-consenting Lender or Lenders (in their respective sole discretion, so long as all non-consenting Lenders are so replaced) with one or shall, more persons pursuant to SECTION 2.16 so long as at the time of such replacement each such new Lender consents to the extent required by any Loan Document) enter into any amendmentproposed change, modification waiver, discharge or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawtermination.
(d) Notwithstanding anything in SECTION 11.02(b) to the foregoingcontrary, this Agreement and the other Loan Documents may be amended at any time and from time to time to increase the aggregate principal amount of U.S. Term Loans or to establish additional Classes of U.S. Term Loans (or amended collectively, "ADDITIONAL TERM LOANS") by an agreement in writing entered into by the Borrowers, the Administrative Agent, the Collateral Agent and restatedeach person (including any Lender) that shall agree to make an Additional Term Loan (and each such person that shall not already be a Lender shall be reasonably acceptable to the Administrative Agent and shall, at the time such agreement becomes effective, become a Lender with the written same effect as if it had originally been a Lender under this Agreement with the Term Loans set forth in such agreement); PROVIDED that (1) no more than an amount equal to $50.0 million of Additional Term Loans less the principal amount of all Senior Subordinated Notes issued after the Closing Date pursuant to SECTION 6.01(b) may be established pursuant to this SECTION 11.02(d) without the consent of the Required Lenders, (2) no Default or Event of Default has occurred and is continuing or would occur after giving effect thereto, (3) the covenants in SECTION 6.10 would be satisfied on a Pro Forma Basis on the date of any such amendment and for the most recent Test Period, after giving effect to such Additional Term Loans, and (4) the Senior Leverage Ratio would not be greater than 2.5:1.0 after giving effect thereto. Any such agreement shall be reasonably satisfactory to the Administrative Agent, and shall amend the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits provisions of this Agreement and the other Loan Documents and shall set forth the terms of the Additional Term Loans established thereby (including the amount and final maturity thereof (which shall not be earlier than the Term Loan Maturity Date), any provisions relating to the amortization or mandatory prepayment thereof (which shall be no more than ratable or PARI PASSU, as applicable, with the Term Loans), the interest to accrue and be payable thereon and any fees to be payable in respect thereof (PROVIDED that the Applicable Margins with respect to any Additional Term Loans shall not be more than 25 basis points higher than the Applicable Margins with respect to the Term Loans and that all other payment rights shall be pari passu with the Revolving Facility Term Loans)) and effect such other changes (including changes to the provisions of this Section, SECTION 2.14 and the definition of "Required Lenders") as U.S. Borrower and the Administrative Agent shall deem necessary or advisable in connection with the Additional Term Loans; PROVIDED that no such agreement shall (i) effect any change described in SECTION 11.02(b) (i) through (ix) without the consent of each person required to consent to such change under such clause (it being agreed, however, that the Additional Term Loans will not, of themselves, be deemed to effect any of the changes described in SECTION 11.02(b)(vi) THROUGH (viii) and (1)), (ii) amend ARTICLE V, VI or VIII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits one or more Classes, but not all Classes, of Loans or Borrowings without the prior written consent of Lenders holding a majority in interest of the Loans and the accrued interest and fees Commitments of each Class not so benefited (it being agreed that no provision requiring either Borrower to prepay Term Loans of one or more Classes pursuant to SECTIONS 2.10(c) through (h) shall be deemed to violate this clause) or (iii) change any other provision of this Agreement or any other Loan Document that creates rights in respect thereof and (b) to include appropriately the favor of Lenders holding such credit facilities Loans or Commitments of any existing Class, other than as necessary or advisable in any determination the judgment of the Required LendersAdministrative Agent to cause such provision to take into account, or to make the benefits of such provision available to, Lenders holding Additional Term Loans. The Loans and Borrowings established pursuant to this paragraph shall constitute Loans and Borrowings under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after the establishment of any such Additional Term Loans.
(e) In addition, notwithstanding the foregoing, Notwithstanding anything in this Agreement may be amended with to the written consent of the Administrative Agentcontrary, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) any Offer to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which Redeem shall be Loans hereunder (“Replacement Term Loans”); provided that (a) accepted by all Lenders to which such Offer to Redeem was made unless three Business Days prior to the aggregate principal amount of such Replacement Term Loans shall not exceed proposed redemption date the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin Required Lenders give their consent for such Replacement Term Loans shall not Offer to Redeem to be higher than the Applicable Margin for declined by all such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Lender or any Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the Issuing Bank Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower the Borrowers or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any a Borrower or any other Loan Party in any case shall entitle such Person the Borrowers to any other or further notice or demand in similar or other circumstances.
(b) Except as provided . Notwithstanding anything to the contrary contained herein or in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant the authority to an agreement enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or agreements in writing entered into by each party thereto and the Administrative Agent, as applicableany of them shall be vested exclusively in, and consented to by all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Required LendersAgents in accordance with Sections 7.02 and 7.03 for the benefit of all the Secured Parties; provided, however, that no such agreement shall
the foregoing shall not prohibit (i) decrease or forgive the principal amount ofAgent from exercising on their own behalf the rights and remedies that inure to its benefit (solely in its capacity as an Agent) hereunder and under the other Loan Documents, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend any Issuing Bank from exercising the Commitment of any Lender or decrease rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank) hereunder and under the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLoan Documents, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender) hereunder and under the other Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueDocuments, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify any Lender from exercising setoff rights in accordance with Section 9.06 (subject to the provisions terms of Section 2.18(b) 2.17), or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend subject to Section 8.11, any Lender from filing proofs of claim or modify appearing and filing pleadings on its own behalf during the provisions pendency of a proceeding relative to any Loan Party under any Insolvency Law.
(b) Any amendment or waiver of any provision of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” Agreement or any other provision hereof specifying Loan Document (other than the number Fee Letter or percentage any Letter of Lenders required to waiveCredit Document), amend or modify any rights hereunder or make any determination or grant and any consent hereunderto any departure by a Borrower or any other Loan Party therefrom, without shall be effective if the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may same shall be included in the determination of writing and signed by the Required Lenders on substantially and the same basis as the Loans and Commitments are included on the Closing Date), or
Borrowers (vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without (with the prior written consent of the Administrative Agent Required Lenders) and the Borrowers), provided that such waiver or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender consent shall be bound effective only in the specific instance and for the specific purpose for which given; provided further that (x) any provision of this Agreement or any other Loan Document may be amended by any waiver, amendment or modification authorized an agreement in writing signed by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.and
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Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any New Term Loan Installment Date or reduce the amount due on any New Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Amendment Effective Date), or,
(vi) release all or substantially all the Collateral or release any of Holdings or any Subsidiary Loan Party from its Guarantee under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lead Arranger, Syndication Agent, Co-Documentation Agent or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the New Term Loans and the New Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Holdings, the Company Borrower and the Lenders providing the relevant Replacement New Term Loans (as defined below) to permit the refinancing of all outstanding New Term Loans (“Refinanced New Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement New Term Loans”); provided that (a) the aggregate principal amount of such Replacement New Term Loans shall not exceed the aggregate principal amount of such Refinanced New Term Loans, (b) the Applicable Margin for such Replacement New Term Loans shall not be higher than the Applicable Margin for such Refinanced New Term Loans, (c) the weighted average life to maturity of such Replacement New Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced New Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement New Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement New Term Loans than, those applicable to such Refinanced New Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingrefinancing (for avoidance of doubt any such less favorable terms shall apply only to the Refinanced New Term Loans and not to the New Revolving Facility Loans).
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of Holdings and the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any Additional New Term Loan Commitments or Additional New Revolving Facility Commitments on substantially the same basis as the New Term Loans or New Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersapplicable.
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Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any Revolving L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or Revolving L/C Participation Fees or other fees of payable to any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments Defaults shall not constitute an increase of in the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which any scheduled amortization payment in respect of any Incremental Term Loan or payment of interest on any Loan or any Loan, Revolving L/C Disbursement or any Fees is due or reduce the amount of any scheduled amortization payment due with respect to any Incremental Term Loan on the date due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) extend the stated expiration date of any Revolving Letter of Credit beyond the Revolving Maturity Date, without the prior written consent of each Lender directly affected thereby,
(vi) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” ”, “Majority Lenders” ”, or any other provision hereof or of any other Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or under any other Loan Document or make any determination or grant any consent hereunderhereunder or under any other Loan Document, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orand
(vivii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests value of such the Guarantees of the Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, Parties without the prior written consent of each LenderLender and Issuing Bank; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, an Issuing Bank or a Swingline Lender hereunder or under the other Loan Documents without the prior written consent of the such Administrative Agent or the Agent, Collateral Agent, Issuing Bank acting as such at the effective date of such agreementor Swingline Lender, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.,
(c) Without the consent of any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Incremental Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Incremental Term Loans (“Refinanced Term Loans”) with a replacement “B” term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (ai) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (bii) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (ciii) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (div) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, (i) technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Incremental Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable terms and conditions provided for in Section 2.20 and (ii) any Loan Document may be amended, modified, supplemented or waived with the written consent of the Administrative Agent and the Borrower without the need to obtain the consent of any Lender if such amendment, modification, supplement or waiver is executed and delivered in order to cure any an ambiguity, omission, mistakemistake or defect in such Loan Document; provided that in connection with this clause (ii), defect in no event will the Administrative Agent be required to substitute its judgment for the judgment of the Lenders or inconsistencythe Required Lenders, to and the extent Administrative Agent may in all circumstances seek the approval of the Required Lenders, the affected Lenders or all Lenders in connection with any such cure could not reasonably be expected to have a material adverse effect on the Lendersamendment, modification, supplement or waiver.
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Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Lender or any Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the Issuing Bank Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower the Borrowers or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any a Borrower or any other Loan Party in any case shall entitle such Person the Borrowers to any other or further notice or demand in similar or other circumstances.
(b) Except as provided . Notwithstanding anything to the contrary contained herein or in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant the authority to an agreement enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or agreements in writing entered into by each party thereto and the Administrative Agent, as applicableany of them shall be vested exclusively in, and consented to by all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Required LendersAgents in accordance with Sections 7.02 and 7.03 for the benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (i) the Agent from exercising on their own behalf the rights and remedies that inure to its benefit (solely in its capacity as an Agent) hereunder and under the other Loan Documents, (ii) any Issuing Bank from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank) hereunder and under the other Loan Documents, (iii) any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender) hereunder and under the other Loan Documents, (iv) any Lender from exercising setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.17), or (v) subject to Section 8.11, any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Insolvency Law.
(b) Any amendment or waiver of any provision of this Agreement or any other Loan Document (other than the Fee Letters or any Letter of Credit Document), and any consent to any departure by a Borrower or any other Loan Party therefrom, shall be effective if the same shall be in writing and signed by the Required Lenders and the Borrowers (or by the Administrative Agent (with the prior written consent of the Required Lenders) and the Borrowers), provided that such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided further that (x) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing signed by the Administrative Agent and the U.S. Borrower to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, and (y) no such agreement amendment, waiver or consent shall:
(i) decrease extend the Maturity Date of or forgive increase the stated amount of any Commitment of any Lender (or reinstate any Commitment of any Lender terminated pursuant to the terms hereof) without the written consent of such Lender;
(ii) postpone any date fixed by this Agreement for any scheduled payment (but not any prepayment) of principal, interest or fees due to any Lender hereunder without the written consent of such Lender;
(iii) reduce the principal amount of, or extend the final maturity of, or decrease the rate of interest specified herein on, any Loan or any L/C Disbursement, Disbursement or any interest or Fees payable hereunder without the prior written consent of each Lender directly affected thereby; provided thereby (it being understood and agreed that any amendment to change in the financial covenant definition of “Leverage Ratio”, or in the component definitions in this Agreement thereof, shall not constitute a reduction in the of rate of interest for purposes of this clause or any interest or Fees payable hereunder); provided, however, that (i),
(iiA) increase or extend only the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments U.S. Required Revolving Lenders shall not constitute an increase be required to waive any obligation of the Commitments U.S. Borrower to pay default interest pursuant to Section 2.07 with respect to the U.S. Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith (B) only the consent of any Lender),
(iii) extend or the Canadian Required Revolving Lenders shall be required to waive any obligation of either Canadian Borrower to pay default interest pursuant to Section 2.07 with respect to the Canadian Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith, (C) only the consent of the Required U.S. Term Lenders shall be required to waive any obligation of the U.S. Borrower to pay default interest pursuant to Section 2.07 with respect to the U.S. Term Loan Installment Date Facility, including with respect to any amount payable thereunder or reduce in connection therewith, and (D) only the amount due on consent of the Required Canadian Term Lenders shall be required to waive any obligation of either Canadian Borrower to pay default interest pursuant to Section 2.07 with respect to the Canadian Term Loan Installment Date Facility, including with respect to any amount payable thereunder or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,in connection therewith;
(iv) amend or modify the provisions of change Section 2.18(b) or (c) 2.16 in a manner that would by its terms alter the pro rata sharing of payments required thereby, thereby without the prior written consent of each Lender adversely affected thereby,thereby or change the order of application, as among the Facilities, of any prepayment or other amount specified in Section 7.05 from the order set forth in such Section in a manner that materially and adversely affects the Lenders under any Facility without the prior written consent of (A) if such Facility is the U.S. Term Loan Facility, the Required U.S. Term Lenders, (B) if such Facility is the Canadian Term Loan Facility, the Required Canadian Term Lenders, (C) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders and (D) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Revolving Lenders;
(v) amend or modify the provisions change any provision of this Section Section, or the percentage specified in definition of the terms “Required Lenders,” “Majority Required U.S. Revolving Lenders,” “Required U.S. Term Lenders”, “Required Canadian Revolving Lenders,” “Required Canadian Term Lenders”, “Required Revolving Lenders,” or “Required Term Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waiveamend, amend waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely directly affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orthereby;
(vi) except as expressly permitted hereunder or under any Security Document, (A) release the guaranty provided by the U.S. Borrower hereunder without the written consent of each Canadian Lender, or (B) release all or substantially all of the Collateral value of the guaranties provided by the other Guarantors hereunder or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests Collateral without the written consent of such Subsidiary Loan Party is sold or otherwise disposed of each Lender;
(vii) change Section 9.04 in a transaction permitted by this Agreement, manner that imposes additional restrictions on the ability of any Lender under any Facility to assign any of its rights or obligations hereunder without the prior written consent of each Lender(A) if such Facility is the U.S. Term Loan Facility, the Required U.S. Term Lenders, (B) if such Facility is the Canadian Term Loan Facility, the Required Canadian Term Lenders, (C) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders and (D) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Revolving Lenders;
(viii) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding one Class of Loans differently from the rights in respect of payments due to Lenders holding another Class of Loans without the prior written consent of the Required U.S. Revolving Lenders (if the U.S. Revolving Lenders are the adversely affected Class), Required U.S. Term Lenders (if the U.S. Term Lenders are the adversely affected Class), Required Canadian Revolving Lenders (if the Canadian Revolving Lenders are the adversely affected Class) or Required Canadian Term Lenders (if the Canadian Term Lenders are the adversely affected Class); provided further or
(ix) amend or modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(g) without the written consent of such SPC, provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Agent, an Issuing Bank or a Swing Line Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the such Agent, Issuing Bank acting as such at or Swing Line Lender, respectively. Notwithstanding anything to the effective date of such agreementcontrary herein, as applicable. Each no Defaulting Lender shall be bound by have any waiverright to approve or disapprove any amendment, amendment waiver or modification authorized by this Section 9.08 consent hereunder or under any other Loan Document (and any amendment, waiver or consent which by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without its terms requires the consent of all Lenders, all Lenders or a majority in interest of Lenders under any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, Facility or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement each affected Lender may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made effected with the consent of the Borrowers and the Administrative Agent applicable Lenders other than Defaulting Lender); provided that any such amendment, waiver or consent referred to the extent necessary to in clause (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loansb)(i), as applicable and (ii) cure or (iii) above that, but for this sentence, would require the prior written consent of such Defaulting Lender, will continue to require the consent of such Defaulting Lender; and provided further that any ambiguitysuch amendment, omissionwaiver or consent requiring the consent of all Lenders, mistake, defect such Lender or inconsistency, each affected Lender that by its terms affects any Defaulting Lender more adversely than any other Lender whose consent is so required shall require the consent of such Defaulting Lender. No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersit under Hedging Agreements or Banking Services Obligations.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 11.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank may have had notice or demand on any Borrower or any other Loan Party in any case shall entitle knowledge of such Person to any other or further notice or demand in similar or other circumstancesDefault at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders (and, prior to the completion of the primary syndication (as determined by Arranger) of the Commitments and (ythe Loans by the Arranger) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent or Collateral Agent, as applicable, and consented to by the Loan Party or Loan Parties that are parties thereto, in each case with the written consent of the Required Lenders; provided, however, provided that no such agreement shall
shall (i) decrease increase the dollar amount of the Commitment of any Lender without the written consent of such Lender or increase the Commitments of all Lenders (other than as set forth in Section 2.20) without the consent of each Lender, (ii) reduce or forgive the principal amount of, of any Loan or extend the final maturity of, LC Disbursement or decrease reduce the rate of interest onthereon (other than to waive default interest under Section 2.06(c) to the extent a waiver of the underlying default giving rise to such default interest does not require a vote of all Lenders), or reduce or forgive any Loan or any L/C DisbursementFees payable hereunder, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend postpone the maturity of any Loan, or waive the required date of reimbursement of any Term Loan Installment Date LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount due on of, waive or excuse any Term Loan Installment Date such payment, or extend postpone the scheduled date of expiration of any Commitment or postpone the scheduled date on which payment of interest on expiration of any Loan or any L/C Disbursement or any Fees is dueLetter of Credit beyond the Revolving Maturity Date, without the prior written consent of each Lender adversely affected thereby,
, (iv) amend or modify the provisions of change Section 2.18(b2.14(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments or set-offs required thereby, without the prior written consent of each Lender adversely affected thereby,
Lender, (v) amend or modify change the provisions of this Section or percentage set forth in the definition of the terms “Required Lenders,” or “Majority Supermajority Lenders” or any other provision hereof of any Loan Document (including this Section 11.02) specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunderthereunder, without the prior written consent of each Lender adversely affected thereby (it being understood thator each Lender of such Class, with as the case may be), (vi) release any Subsidiary Guarantor from its Guarantee (except as expressly provided in Article VII), or limit its liability in respect of such Guarantee, without the written consent of the Required Lenderseach Lender, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vivii) release all or substantially all of the Collateral from the Liens of the Security Documents or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unlessalter the relative priorities of the Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations), in the each case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or (viii) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each affected Class; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, the Issuing Bank hereunder or the Swingline Lender without the prior written consent of the Administrative Agent or Agent, the Issuing Bank acting or the Swingline Lender, as the case may be. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Borrower, the Required Lenders and the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank and the Swingline Lender) if (x) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (y) at the effective date time such amendment becomes effective, each Lender not consenting thereto receives payment in full of such agreement, as applicable. Each Lender shall be bound the principal of and interest accrued on each Loan made by any waiver, amendment it and all other amounts owing to it or modification authorized by accrued for its account under this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such LenderAgreement.
(c) Without If, in connection with any proposed change, waiver, discharge or termination of the provisions of this Agreement that requires unanimous approval of all Lenders as contemplated by Section 11.02(b) (other than clause (iii) of such Section), the consent of any Lender, the Loan Parties and Supermajority Lenders is obtained but the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities of such other Lenders whose consent is required is not obtained, then Borrower shall have the right to replace all, but not less than all, of such non-consenting Lender or Lenders (in addition to New Term Loans so long as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the all non-consenting Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”are so replaced) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life one or more Persons pursuant to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans Section 2.16 so long as at the time of such refinancing replacement each such new Lender consents to the proposed change, waiver, discharge or termination; provided, however, that Borrower shall not have the right to replace a Lender solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to clause (diii) of Section 11.02(b); provided further that each replaced Lender receives payment in full of the principal of and interest accrued on each Loan made by it and all other terms applicable amounts owing to such Replacement Term Loans shall be substantially identical to, it or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide accrued for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingits account under this Agreement.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Broder Bros Co)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 2.21 with respect to a New Term Loan an Incremental Facility Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments Commitment of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) of this Agreement or Section 5.02 of the Collateral Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further provided, however, that no consent of any Lender shall be required for a release of Collateral pursuant to Section 5.12,
(vii) effect any waiver, amendment or modification of any Loan Document that would alter the relative priorities of the rights of the Secured Parties in the Collateral, or
(viii) amend or modify the definition of “Issuing Bank Sublimit” without the prior written consent of each Issuing Bank; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Revolving Credit Agreement (Nuance Communications, Inc.)
Waivers; Amendment. (a) No failure or delay of by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 11.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank may have had notice or demand on any Borrower or any other Loan Party in any case shall entitle knowledge of such Person to any other or further notice or demand in similar or other circumstancesDefault at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent or Collateral Agent, as applicable, and consented to by the Loan Party or Loan Parties that are parties thereto, in each case with the written consent of the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease increase the Dollar amount of the Commitment of any Lender without the written consent of such Lender or increase the Commitments of all Lenders without the consent of each Lender, (ii) reduce or forgive the principal amount of, of any Loan or extend the final maturity of, LC Disbursement or decrease reduce the rate of interest onthereon (other than to waive default interest under Section 2.06(c) to the extent a waiver of the underlying default giving rise to such default interest does not require a vote of all Lenders), or reduce or forgive any Loan or any L/C DisbursementFees payable hereunder, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend postpone the maturity of any Loan, or waive the required date of reimbursement of any Term Loan Installment Date LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount due on of, waive or excuse any Term Loan Installment Date such payment, or extend postpone the scheduled date of expiration of any Commitment or postpone the scheduled date on which payment of interest on expiration of any Loan or any L/C Disbursement or any Fees is dueLetter of Credit beyond the Final Maturity Date, without the prior written consent of each Lender adversely affected thereby,
, (iv) amend or modify the provisions of change Section 2.18(b2.14(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments or set-offs required thereby, without the prior written consent of each Lender adversely affected thereby,
Lender, (v) amend or modify change the provisions of this Section or percentage set forth in the definition of the terms “Required Lenders,” “Majority Supermajority Lenders,” or any other provision hereof of any Loan Document (including this Section 11.02) specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunderthereunder, without the prior written consent of each Lender adversely affected thereby (it being understood thator each Lender of such Class, with as the case may be), (vi) release Holdings or any Subsidiary Guarantor from its Guarantee (except as expressly provided in Article VII), or limit its liability in respect of such Guarantee, without the written consent of the Required Lenderseach Lender, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vivii) release all or substantially all of the Collateral from the Liens of the Security Documents or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unlessalter the relative priorities of the Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations and upon payment in full of the Obligations), in the each case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or (viii) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each affected Class; provided further provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, the Administrative Collateral Agent, the Issuing Bank hereunder or the Swingline Lender without the prior written consent of the Administrative Agent or Agent, the Collateral Agent, the Administrative Collateral Agent, the Issuing Bank acting as such at or the effective date of such agreementSwingline Lender, as applicable. Each Lender shall be bound by the case may be, and (2) any waiver, amendment or modification authorized of this Agreement that by its terms affects the rights or duties under this Agreement of the Revolving Lenders may be effected by an agreement or agreements in writing entered into by Borrower and requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 9.08 11.02(b) if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Borrower, the Required Lenders and any consent the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank, the Collateral Agent, the Administrative Collateral Agent and the Swingline Lender) if (x) by any Lender pursuant to this Section 9.08 shall bind any assignee the terms of such Lenderagreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of its Loans, accrued interest thereon, accrued fees and all other amounts owing to it or accrued for its account under this Agreement (including, without limitation, all amounts Section 2.12, 2.13 and 2.15). In addition to the foregoing, in no event shall the percentage advance rates set forth in the definitions of “Borrowing Base”, “Fixed Asset Loan Value”, “Inventory Eligibility Factor” or “Net Orderly Liquidation Value” be increased above the original stated percentages set forth in such definitions without the consent of the Supermajority Lenders.
(c) Without If, in connection with any proposed change, waiver, discharge or termination of the provisions of this Agreement that requires unanimous approval of all Lenders as contemplated by Section 11.02(b) (other than clause (iii) of such Section), the consent of any Lender, the Loan Parties and Supermajority Lenders is obtained but the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities of such other Lenders whose consent is required is not obtained, then Borrower shall have the right to replace all, but not less than all, of such non-consenting Lender or Lenders (in addition to New Term Loans so long as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the all non-consenting Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”are so replaced) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life one or more Persons pursuant to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans Section 2.16 so long as at the time of such refinancing replacement each such new Lender consents to the proposed change, waiver, discharge or termination; provided, however, that Borrower shall not have the right to replace a Lender solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to paragraph (diii) of Section 11.02(b); provided further that each replaced Lender receives payment in full of the principal of and interest accrued on each Loan made by it and all other terms applicable amounts owing to such Replacement Term Loans shall be substantially identical to, it or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide accrued for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingits account under this Agreement.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Agent or any Lender in exercising any right or power hereunder or under any Second Lien Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Agent and the Lenders hereunder and under the other Second Lien Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No Subject to the Intercreditor Agreement, no waiver of any provision of this Agreement or any other Second Lien Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect Subject to a New Term Loan Amendmentthe Intercreditor Agreement, neither this Agreement nor any other Second Lien Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Second Lien Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees Administrative Agent Fee is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “term "Required Lenders,” “Majority Lenders” " or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of the Borrower or any Subsidiary Loan Party from its Guarantee guarantee under a the Second Lien Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent or any Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Second Lien Loan Document) enter into any amendment, modification or waiver of any Second Lien Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Second Lien Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Skyterra Communications Inc)
Waivers; Amendment. (a) No failure or delay of by the Administrative Agent, the Issuing Bank Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 4.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Administrative Agent and the Required Lenders and (y) in the case of any other Loan Document, pursuant Borrower with respect to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no which such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and is to apply, subject to any consent by any Lender pursuant to this required in accordance with Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit 9.02 of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawCredit Agreement.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative either Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Subject to Section 2.20 with respect to a New Term Loan Amendment2.14, neither this Agreement nor any other Loan Document nor any provision hereof of this Agreement or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent party thereto and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the applicable Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 4.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms “Required Lenders,” “Majority Lenders,” or any other provision hereof of this Agreement specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the Subsidiary Loan Party Guarantors from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan PartyGuarantor, all or substantially all the Equity Interests of such Subsidiary Loan Party Guarantor is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative either Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative such Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee Assignee of such Lender. Notwithstanding the foregoing, (i) only the consent of the Required Revolving Facility Lenders shall be required to (and only the Required Revolving Facility Lenders shall have the ability to) waive, amend or modify the conditions set forth in Section 4.01 and (ii) only the consent of the Required Deferring Lenders shall be required (and only the Required Deferring Lenders shall have the ability to) waive, amend or modify Section 6.16.
(c) Without the consent of any LenderArranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent, as applicable, may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Incremental Term Loan Commitments or New Incremental Revolving Facility Commitments on substantially the same basis in a manner consistent with Section 2.21, including, with respect to Other Incremental Revolving Loans or Other Incremental Term Loans, as the may be necessary to establish such Incremental Term Loans Loan Commitments or Revolving Facility LoansLoans as a separate Class or tranche from the existing Term Loan Commitments or Incremental Revolving Facility Commitments. Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “Charges”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable and (ii) cure any ambiguitylaw, omissionthe rate of interest payable hereunder, mistaketogether with all Charges payable to such Lender or such Issuing Bank, defect shall be limited to the Maximum Rate; provided that such excess amount shall be paid to such Lender or inconsistency, such Issuing Bank on subsequent payment dates to the extent such cure could not reasonably be expected to have a material adverse effect on exceeding the Lenderslegal limitation.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Waivers; Amendment. (a) No failure or delay of by the Administrative Agent, the Issuing Bank Collateral Agent or any Lender Holder in exercising any right right, power or power remedy hereunder or under any Loan other Indenture Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right right, power or powerremedy, or any abandonment or discontinuance of steps to enforce such a right right, power or powerremedy, preclude any other or further exercise thereof or the exercise of any other right right, power or powerremedy. The rights rights, powers and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders Holder hereunder and under the other Loan Indenture Documents are cumulative and are not exclusive of any rights rights, powers or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party Holder therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 7.09, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Collateral Agent and the Required Lenders and (y) in the case of any other Loan Document, pursuant Pledgor or Pledgors with respect to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no which such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and is to apply, subject to any consent by any Lender pursuant to this Section 9.08 shall bind any assignee required in accordance with Article 9 of such Lenderthe Indenture.
(c) Without For the consent purpose of any LenderSection 7.09(b) above, the Loan Parties Collateral Agent shall be entitled to rely upon (i) written confirmation from the agent managing the solicitation of consents and a certificate signed by two Officers of the Parent, provided by the Trustee, as to the receipt of valid consents from the Holders of at least a majority in aggregate principal amount of the outstanding Notes to amend this Agreement (or two-thirds in aggregate principal amount of the outstanding Notes if required by Article 9 of the Indenture), and (ii) any document believed by it to be genuine and to have been signed or presented by the proper Person and the Administrative Collateral Agent may (need not investigate any fact or matter stated in their respective sole discretionthe document. At any time that Parent desires that this Agreement be amended as provided in Section 7.09(b) above, or shall, Parent shall deliver to the extent Collateral Agent a certificate signed by two Officers of Parent stating that the amendment of this Agreement is permitted pursuant to Section 7.09(b) above. If requested by the Collateral Agent (although the Collateral Agent shall have no obligation to make any such request), Parent shall furnish appropriate legal opinions (from counsel reasonably acceptable to the Collateral Agent) to the effect set forth in the immediately preceding sentence. Such officers’ certificate and legal opinion will contain the statements required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit Section 13.05 of the Secured PartiesIndenture. If requested by the Collateral Agent (although the Collateral Agent shall have no obligation to make any such request), Parent shall furnish to the Collateral Agent copies of officers’ certificates and legal opinions delivered to the Trustee in connection with any amendment to the Indenture affecting the operation of this Section 7.09. The Collateral Agent shall not be liable for any action it takes or as required by local law omits to give effect to, take in good faith in reliance on such certificates or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawopinions.
(d) Notwithstanding Upon the foregoingIncurrence of Pari Passu Indebtedness secured by Liens permitted under the Indenture, which liens are intended to rank equal in priority with the Liens granted under this Agreement (“Additional Second Lien Obligations”), the holders of such Pari Passu Indebtedness or the trustee or agent on behalf of such holders shall execute and deliver a joinder, amendment or supplement to this Agreement to provide that the new holder(s) (and/or the trustee or agent for such holder(s)) shall be “Secured Parties” hereunder, which joinder, amendment or supplement may be amended provide for the appointment of the Collateral Agent as agent for such holder(s) and/or provide for the grant of a security interest in the Collateral by the Pledgors in form and substance reasonably satisfactory to the Collateral Agent. Upon the execution and delivery by such holder(s) (or amended trustee or agent) and restatedthe other parties thereto of such joinder, amendment or supplement, such holder(s) (or trustee or agent for such holders) shall become a “Secured Party” hereunder with the written consent of the Required Lenders, the Administrative Agent, same force and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans effect as provided in Section 2.20) if it were originally a party to this Agreement and to permit named as a “Secured Party” herein. The execution and delivery of such joinder, amendment or supplement shall not require the extensions consent of credit from time to time outstanding thereunder any other Secured Party hereunder (other than the Collateral Agent), and the accrued interest rights and fees obligations of each Secured Party hereunder shall remain in respect thereof full force and effect notwithstanding the addition of any new Secured Party as a party to share ratably in this Agreement. For the benefits purpose of this Section 7.09(d), the Collateral Agent shall be entitled to rely upon an officers’ certificate stating that the amendment of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) is permitted pursuant to include appropriately the Lenders holding such credit facilities in any determination of the Required Lendersthis Section 7.09(d).
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Collateral Agreement (Hexion Specialty Chemicals, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender Party in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce any such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders Lender Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document Document, or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan AmendmentSections 2.22, 2.23 and 2.24, in the Guaranty Agreement, in the Security Documents and in the Second Lien Intercreditor Agreement (at any time when the Second Lien Intercreditor Agreement is in effect), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Parent, the Borrower, the Administrative Agent and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each the Administrative Agent and the Loan Party or Loan Parties that are party thereto and the Administrative Agent, as applicable, and consented to by the Required LendersLenders (in the case of clauses (x) and (y), at the Borrower’s expense); provided, however, that no such agreement shall:
(i) waive any condition set forth in Section 4.02 without the written consent of a Majority in Interest of the Revolving Lenders;
(ii) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C LC Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(iiiii) increase or extend the any Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iiiiv) extend or waive any Term date for payment of principal of any Loan Installment Date or any date for reimbursement of any LC Disbursement or reduce the amount due on any Term Loan Installment Date such date or extend any date on which payment of interest on any Loan or any L/C Disbursement or fee (including any Fees Agent Fee) is due, without the prior written consent of each Lender adversely directly affected thereby,;
(ivv) amend or modify the provisions of Section 2.18(b) or (c2.18(d) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,Lender;
(vvi) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” or “Majority Lendersin Interest” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with without the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vivii) except as expressly permitted under Section 9.17, release all the Parent or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral the Guaranty Agreement, unlessor limit its liability in respect of such Guarantee, in without the case written consent of a Subsidiary Loan Partyeach Lender;
(viii) except as expressly permitted under Section 9.17 or Section 3.07(a) of the Intercreditor Agreement (other than clause (iii) thereof), release all or substantially all of the Equity Interests Collateral from the Liens of such Subsidiary Loan Party is sold the Security Documents without the consent of each Lender; or
(ix) change the order of priority of payments set forth in Section 7.03, Section 5.04 of the Security Agreement or otherwise disposed Section 2.01 of in a transaction permitted by this the Intercreditor Agreement, without the prior written consent of each Lender; provided further provided, further, that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, the Collateral Agent, any Issuing Bank or the Issuing Bank Swingline Lender hereunder without the prior written consent of the Administrative Agent Agent, the Collateral Agent, such Issuing Bank or the Issuing Bank Swingline Lender, as the case may be, acting as such at the effective date of such agreement, as applicable, (B) any amendment, waiver or other modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Lenders of a particular Class (but not the Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Parent, the Borrower, the Administrative Agent and the requisite number or percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time and (C) any (1) amendment or modification of the provisions of Section 6.14 or, solely for purposes of Section 6.14, the defined terms used, directly or indirectly, therein or (2) waiver of a Financial Covenant Event of Default, in each case, may be effected by an agreement or agreements in writing entered into by the Parent, the Borrower, the Administrative Agent and a Majority in Interest of the Revolving Lenders. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (ii), (iii) or (iv) of the first proviso of this Section 9.08(b) and then only in the event such Defaulting Lender shall be affected by such amendment, waiver or other modification. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties Parent, the Borrower and the Administrative Agent and/or the Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, in each case at the Borrower’s expense, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, to or protect any security interest for the benefit of the Secured Parties, Parties in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoingother provisions of this Section 9.08, the applicable Loan Parties and the Administrative Agent and/or the Collateral Agent may (but shall have no obligation to) amend or supplement the Loan Documents without the consent of any other Lender Party for the purpose of (i) curing any ambiguity, defect, inconsistency or typographical or drafting error, (ii) making any change that would provide any additional rights or benefits to the Lender Parties and (iii) making, completing or confirming any grant of Collateral permitted or required by this Agreement may be amended (or amended and restated) with the written consent any of the Required Lenders, Security Documents or any release of any Collateral that is otherwise permitted under the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits terms of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersSecurity Documents.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (SemGroup Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative either Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof of this Agreement or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent party thereto and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the applicable Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 4.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms “Required Lenders,” “Majority Lenders,” or any other provision hereof of this Agreement specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the Subsidiary Loan Party Guarantors from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan PartyGuarantor, all or substantially all the Equity Interests of such Subsidiary Loan Party Guarantor is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative either Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative such Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee Assignee of such Lender.
(c) Without the consent of the Syndication Agent or any LenderArranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent, as applicable, may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Incremental Term Loan Commitments or New Incremental Revolving Facility Commitments on substantially the same basis in a manner consistent with Section 2.21, including, with respect to Other Incremental Revolving Loans or Other Incremental Term Loans, as the may be necessary to establish such Incremental Term Loans Loan Commitments or Revolving Facility LoansLoans as a separate Class or tranche from the existing Term Loan Commitments or Incremental Revolving Facility Commitments. Notwithstanding anything herein to the contrary, if at any time the applicable interest rate, together with all fees and charges that are treated as interest under applicable law (collectively, the “Charges”), as provided for herein or in any other document executed in connection herewith, or otherwise contracted for, charged, received, taken or reserved by any Lender or any Issuing Bank, shall exceed the maximum lawful rate (the “Maximum Rate”) that may be contracted for, charged, taken, received or reserved by such Lender in accordance with applicable and (ii) cure any ambiguitylaw, omissionthe rate of interest payable hereunder, mistaketogether with all Charges payable to such Lender or such Issuing Bank, defect shall be limited to the Maximum Rate; provided that such excess amount shall be paid to such Lender or inconsistency, such Issuing Bank on subsequent payment dates to the extent such cure could not reasonably be expected to have a material adverse effect on exceeding the Lenderslegal limitation.
Appears in 1 contract
Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified modified, except as provided in Section 2.21 or Section 8.11, or (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings (prior to a Qualified IPO), the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the date on which the Tranche B-3 Credit-Linked Deposits are required to be returned in full to the Tranche B-3 Lenders, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or extend, waive any Term Loan Installment Date or reduce the amount due on of any Term Loan Installment Date scheduled installment of principal or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b2.19(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” or “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of Holdings (prior to a Qualified IPO), any Borrower or any other Subsidiary Loan Party from its Guarantee under a Collateral the U.S. Guarantee Agreement or the Foreign Guarantee Agreement, as applicable, unless, in the case of (1) Holdings, upon a Qualified IPO or (2) a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender,
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Tranche differently from those of Lenders participating in another Tranche, without the consent of the Majority Lenders participating in the adversely affected Tranche (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment required by Section 2.12 so long as the application of any prepayment still required to be made is not changed),
(viii) effect any waiver, amendment or modification of Section 5.02 of the Collateral Agreement, or any comparable provision of any other Security Document, in a manner that materially adversely affects the rights in respect of payments or collateral of Lenders, without the consent of each Lender so affected; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee Assignee of such Lender.
(c) Without the consent of the Syndication Agent, the Documentation Agent or any Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, protection expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings (prior to a Qualified IPO) and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Incremental Term Loan Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersapplicable.
Appears in 1 contract
Samples: Credit Agreement (Hexion Specialty Chemicals, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of (or change the definition of “Revolving Facility Maturity Date” or “Term Loan Maturity Date” which has the effect of extending the final maturity date of), or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) or Article X in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of Holdings, the U.S. Borrower or any Subsidiary Loan Party from its Guarantee under a the U.S. Collateral AgreementAgreement or the Foreign Guarantee, unlessas applicable, except in the case of the release of a Subsidiary Loan PartyParty from its Guarantee under the U.S. Collateral Agreement or Foreign Guarantee, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of as applicable, as expressly provided in a transaction permitted by this AgreementSection 8.10(b), without the prior written consent of (i) other than with respect to a release of the U.S. Borrower from its Guarantee, each LenderLender and (ii) with respect to a release of the U.S. Borrower from its Guarantee, each Lender adversely affected thereby, or
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any pre-payment or Commitment reduction still required to be made is not changed); provided further provided, further, that (i) no such agreement shall amend, modify or and/or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicableapplicable and (ii) subject to Section 9.08(b)(ii), any such agreement that shall extend the Revolving Facility Maturity Date of one or more Revolving Facility Lenders (the “Extending Revolving Lender”) and does not amend any other provision of this Agreement or the Loan Documents other than to change Applicable Margins and/or L/C Participation Fees on Revolving Loans and Revolving L/C Exposures of Extending Revolving Lenders and/or change the Commitment Fee on Available Unused Commitments of Extending Revolving Lenders shall only require the consent of Holdings, Borrowers, the Administrative Agent, the Extending Revolving Lenders and the Majority Lenders of the Revolving Facility. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Holdings, the Company Borrowers and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, (i) technical and conforming modifications to the Loan Documents may be made with the consent of Holdings and the Borrowers U.S. Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) technical and administrative modifications to Section 2.04 of this Agreement and related defined terms in Section 1.01 of this Agreement may be made to the extent relating to Swingline Alternative Currency Loans with the consent of the U.S. Borrower and the Administrative Agent in connection with the initial selection of a Swingline Alternative Currency Lender to the extent such changes are not adverse to any Revolving Facility Lender or (iii) if the Administrative Agent and U.S. Borrower shall have jointly identified an obvious error (including, but not limited to, an incorrect cross-reference) or any error or omission of a technical nature, in each case, in any provision of any Loan Document, then the Administrative Agent and/or the Collateral Agent (acting in their sole discretion) and the U.S. Borrower or any other relevant Loan Party shall be permitted to amend such provision or cure any ambiguity, omission, mistake, defect or inconsistency, so long as such amendment does not adversely affect the Lenders, and such amendment shall become effective without any further action or consent of any other party to any Loan Document.
(g) Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such cure could Lender will not reasonably be expected entitled to have a material adverse effect on vote in respect of amendments and waivers hereunder and the Commitment and the outstanding Loans or other extensions of credit of such Lender hereunder will not be taken into account in determining whether the Required Lenders or all of the Lenders, as required, have approved any such amendment or waiver (and the definition of “Required Lenders” will automatically be deemed modified accordingly for the duration of such period); provided, that any such amendment or waiver that would increase or extend the term of the Commitment of such Defaulting Lender, extend the date fixed for the payment of principal or interest owing to such Defaulting Lender hereunder, reduce the principal amount of any obligation owing to such Defaulting Lender, reduce the amount of or the rate or amount of interest on any amount owing to such Defaulting Lender or of any fee payable to such Defaulting Lender hereunder, or alter the terms of this proviso, will require the consent of such Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Nalco Holding CO)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b2.19(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(viv) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(viv) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or
(vi) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or Collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Majority Lenders under the Revolving Facility may waive, in whole or in part, any prepayment or Commitment reduction of the Revolving Facility required by Section 2.12 so long as the application of any prepayment or Commitment reduction of the Revolving Facility still required to be made is not changed); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Co-Syndication Agent, Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Credit Extension shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in (w) Section 2.20 2.22, (x) the definition of Letter of Credit Increase Event with respect to a New Term Loan Amendmentamendments to Schedule 2.01(b), (y) Section 2.14(b)(ii) or Section 2.13(e) with respect to the implementation of any Conforming Changes and (z) as otherwise expressly set forth in this Section 9.08, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (xA) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders (or the Administrative Agent, with the written consent of the Required Lenders) and (yB) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party the Loan Party or Loan Parties that are parties thereto and the Required Lenders (or the Administrative Agent, as applicable, and consented to by with the written consent of the Required Lenders); providedprovided that, however, that no such agreement shallnotwithstanding the foregoing:
(i) decrease the written consent of all Lenders shall be required for any waiver, amendment or forgive modification that:
(A) except as expressly permitted herein or in the Collateral Agreement (including Section 9.08(e)), (1) releases all or substantially all the Collateral (it being understood that a transaction permitted under Section 6.05 shall not constitute a release of all or substantially all of the Collateral), or (2) releases all or substantially all of the value of the Guarantees (it being understood that a transaction permitted under Section 6.05 shall not constitute a release of all or substantially all of the value of the Guarantees under the Collateral Agreement (including any release of the Guarantee of a Subsidiary Guarantor in the event all or substantially all the Equity Interests of such Subsidiary Guarantor are sold or otherwise disposed of in a transaction permitted by this Agreement));
(B) except as expressly permitted herein (including Section 7.04(a)) or in the Collateral Agreement, (2) contractually subordinates the Liens of the Administrative Agent under the Security Documents with respect to Borrowing Base Collateral and/or all or substantially all of the Collateral (other than, in each case, in respect of Term Loan Priority Collateral in accordance with the provisions of the Loan Documents as in effect on the date hereof or pursuant to Section 9.17) to the Liens on such Collateral securing any other Indebtedness or (2) contractually subordinates the Obligations hereunder to any other Indebtedness;
(ii) the written consent of each Lender (or Issuing Bank) directly and adversely affected thereby (but not the consent of the Required Lenders) shall be required for any waiver, amendment or modification that:
(A) decreases or forgives the principal amount of, or extend extends the final maturity date of, or decrease the rate of interest on, any Loan or any L/C LC Disbursement, without or extends the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment stated expiration of any Lender or decrease Letter of Credit beyond the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentRevolving Termination Date; provided, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with (1) only the consent of the Required Lenders, additional extensions Revolving Lenders shall be necessary to (x) amend the definition of credit pursuant to this Agreement may be included in the determination “Default Rate” or (y) waive any obligation of the Required Lenders on substantially Borrower to pay interest at the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unlessDefault Rate, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreementcase, as applicable. Each Lender it relates to Revolving Obligations (except that any increase in such Default Rate in excess of 2.00% shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without also require the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Revolving Lenders, the Administrative Agent, Required FILO A Lenders and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required FILO B Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b2) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with only the consent of the Borrowers and the Administrative Agent to the extent Required FILO A Lenders shall be necessary to (ix) integrate amend the definition of “Default Rate” or (y) waive any New Term Commitments or New Revolving Facility Commitments on substantially obligation of the same basis as Borrower to pay interest at the Term Loans or Revolving Facility LoansDefault Rate, in each case, as applicable it relates to FILO A Obligations (except that any increase in such Default Rate in excess of 2.00% shall also require the consent of the Required FILO A Lenders, the Required Revolving Lenders and the Required FILO B Lenders) and (ii3) cure only the consent of the Required FILO B Lenders shall be necessary to (x) amend the definition of “Default Rate” or (y) waive any ambiguityobligation of the Borrower to pay interest at the Default Rate, omissionin each case, mistakeas it relates to FILO B Obligations (except that any increase in such Default Rate in excess of 2.00% shall also require the consent of the Required FILO B Lenders, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on Required Revolving Lenders and the Required FILO A Lenders.);
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the Issuing Bank any L/C Issuer or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the Issuing Bank each L/C Issuer and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Xxxxxx, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Parent, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or the L/C Issuer may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Sections 2.22, 2.23, 2.25 and 6.13, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Parent, the Borrowers Borrower and the Administrative Agent (and consented to by the Required Lenders or, in the case of a waiver, amendment or modification of the Financial Performance Covenant, the Required Covenant Lenders) and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementObligation, extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly adversely affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) (x) increase the amount of or extend the maturity date of the Commitment of any Lender or (y) decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (which, notwithstanding the foregoing, in the case of clause (y), such consent of such Lender shall be the only consent required hereunder to make such modification) (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or Date, reduce the amount due on any Term Loan Installment Date Date, or extend any date on which payment of interest on any Loan or any L/C Disbursement Obligation or any Fees is due, without the prior written consent of each Lender adversely affected therebythereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),
(iv) amend Section 7.02, Section 2.09(b) (to the extent requiring any reduction of the Revolving Facility Commitments to be applied ratably among the Lenders) or modify the provisions of Section 2.18(b2.19(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify reduce the provisions voting rights of any Lender under this Section or the definition of the terms “Required Lenders,” “Majority Lenders” 9.08 or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each such Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the value of the guarantees by the Subsidiary Loan Party from its Parties under the Guarantee under a Collateral AgreementAgreements, unless, in each case, to the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is extent sold or otherwise disposed of in a transaction permitted by this AgreementAgreement or the other Loan Documents, without the prior written consent of each Lender;
(vii) amend Section 1.05 without the prior written consent of each Revolving Facility Lender and each L/C Issuer;
(viii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another Facility, without the consent of the Required Class Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment required by Section 2.12 so long as the application of any prepayment still required to be made is not changed);
(i) amend, waive or otherwise modify the provisions of Section 6.10 and any defined term as used therein (but not as used anywhere else in the Loan Documents) or any other provision of the Loan Documents incorporating Section 6.10 with respect to the effects thereof, (ii) waive or consent to any Default or Event of Default resulting from a breach of Section 6.10 or (iii) alter the rights or remedies of the Required Covenant Lenders arising pursuant to Article VII as a result of a breach of Section 6.10, in each case, without the written consent of the Required Covenant Lenders (which, notwithstanding the foregoing, such consent of the Required Covenant Lenders shall be the only consent required hereunder to make such amendment, waiver or modification); provided further or
(x) (i) contractually subordinate the Obligations in right of payment to any other Indebtedness of the Borrower and/or Guarantors or (ii) contractually subordinate the Liens securing the Obligations on a material portion of the Collateral to Liens on a material portion of the Collateral securing other Indebtedness, without the written consent of each Lender directly and adversely affected thereby (and, with respect to the Term A Loans and Revolving Facility, consent of all Term A Lenders or Revolving Facility Lenders, as applicable), it being understood that this clause (i) shall not (A) override the permission for (x) Liens expressly permitted by Section 6.02 as in effect on the Closing Date or (y) Indebtedness expressly permitted by Section 6.01 as in effect on the Closing Date, (B) restrict an amendment to increase the maximum permitted amount of Indebtedness (x) incurred under Section 6.01(i) and (y) secured by liens under Sections 6.02(i) or (j) as in effect on the Closing Date or (C) apply to the incurrence of debtor-in-possession financing (or similar financing arrangements in insolvency proceedings in non-U.S. jurisdictions) approved by the applicable bankruptcy court; provided, further, that (A) no such agreement amendment shall amend, modify or otherwise affect the rights or duties of the Administrative Agent any Agent, Swingline Lender or the Issuing Bank an L/C Issuer hereunder without the prior written consent of the Administrative Agent such Agent, Swingline Lender or the Issuing Bank such L/C Issuer acting as such at the effective date of such agreementamendment, as applicableapplicable and (B) no amendment, waiver or consent shall amend, modify or waive any condition precedent to any extension of credit under the Revolving Facility set forth in Section 4.01 without the written consent of the Required Class Lenders under such Revolving Facility (it being understood that (i) amendments of any other provision of any Loan Document, including any representation or warranty, any covenant or any Default or Event of Default, shall be deemed to be effective for purposes of determining whether the conditions precedent set forth in Section 4.01 have been satisfied regardless of whether the Required Class Lenders under the Revolving Facility shall have consented to such amendment, modification or waiver and (ii) such consent of the Required Class Lenders under the applicable Revolving Facility shall be the only consent required hereunder to make such modifications to the conditions precedent set forth in Section 4.01 for extensions of credit under the Revolving Facility). Notwithstanding the foregoing, no consent of any Defaulting Lender shall be required for any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender unless such waiver, amendment or modification by its terms would materially and adversely affect such Defaulting Lender differently than other affected Lenders; provided that the Commitment of any Defaulting Lender may not be increased in amount or the maturity thereof extended without the consent of such Lender, and no principal or interest owing to any Defaulting Lender may be reduced, or the date on which payment of such principal or interest is due extended, without the consent of such Lender. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such Lender.
(c) Without the consent of any LenderLender or L/C Issuer, the Loan Parties and the Administrative Agent or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, to include the Other First Lien Secured Parties in the benefit of the Security Documents in connection with the incurrence of any Other First Lien Debt, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement, in all cases subject to the Agreed Security Principles or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Parent and the Borrowers Borrower (ai) to add one or more additional credit or debt facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit or debt facilities in any determination of the Required Lenders, Required Covenant Lenders or Required Class Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of Parent, the Borrowers Borrower and the Administrative Agent to the extent necessary (A) to (i) integrate any New Incremental Term Commitments Loans, any Refinancing Term Loans or New any Replacement Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and applicable, (iiB) to integrate any Other First Lien Debt or (C) to cure any ambiguity, omission, mistake, defect or inconsistency; provided, with respect to this clause (C), that (i) such modifications do not adversely affect the rights of any Lender or other holder of Obligations in any material respect and (ii) the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.
(f) Notwithstanding the foregoing, this Agreement may be amended, (i) with the written consent of each Revolving Facility Lender, the Administrative Agent, Parent and the Borrower to the extent such cure could not reasonably be expected necessary to have a material adverse effect on integrate any Alternative Currency and (ii) with the Lenderswritten consent of the Administrative Agent, L/C Issuer, Parent and the Borrower to the extent necessary to integrate any L/C Alternative Currency.
Appears in 1 contract
Samples: Credit Agreement (EVERTEC, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(viv) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(viv) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, or
(vi) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Co-Syndication Agent, Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity of, or any scheduled principal payment date or date for the payment of any interest on, any Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend amend or waive modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(j) or the provisions of this Section or release any Term Loan Installment Date Guarantor (other than in connection with the sale of such Guarantor in a transaction permitted by Section 6.05) or reduce all or substantially all of the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueCollateral, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or modify the protections afforded to an SPC pursuant to the provisions of Section 2.18(b9.04(i) without the written consent of such SPC or (cv) reduce the percentage contained in a manner that would by its terms alter the pro rata sharing definition of payments required thereby, the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Datedate hereof), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such LenderCollateral Agent.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: First Lien Credit Agreement (Weight Watchers International Inc)
Waivers; Amendment. (a) No failure or delay of the Administrative either Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower the Borrowers or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower the Borrowers or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof of this Agreement or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrowers, the Administrative Agent and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent party thereto and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.04(c); provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) 3.02 of the Collateral Agreement, or (c) any analogous provision of any other Security Document, in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms “Required Lenders,” “Majority Required Revolving Facility Lenders,” “Requisite Cure Acceptance Lenders,” “Super-required Lenders” or any other provision hereof of this Agreement specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or Collateral, release any Subsidiary Loan Party Guarantor from its Guarantee under a Collateral AgreementArticle IX (except for releases contemplated under Section 10.18) or modify Section 10.23 to release any Borrower from its obligations set forth therein, unlesswithout, in each case, the case prior written consent of a Subsidiary Loan Partyeach Lender,
(vii) effect any waiver, all amendment or substantially all modification that by its terms adversely affects the Equity Interests rights in respect of such Subsidiary Loan Party payments or collateral of Lenders participating in any Facility differently from those of Lender participating in another Facility, without the consent of the Required Lenders (measured for this purpose only by reference to the adversely affected Facility) (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is sold not changed), or
(viii) amend or otherwise disposed modify the provisions of in a transaction permitted by this Agreement, Section 1.05 or the definition of “Alternative Currency” without the prior written consent of each Revolving Facility Lender; provided further . provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative either Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative such Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee Assignee of such Lender.
(c) Without the consent of the Syndication Agent, the Documentation Agent or any LenderArranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent, as applicable, may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the Mariner Transactions or any granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Mariner, LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower Borrower, or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party Holdings in any case shall entitle such Person any Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrowers, Holdings and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative AgentAgent and each Loan Party (to the extent such Loan Party is a party thereto), as applicable, and consented to by in each case with the consent of the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any interest on any Loan or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly adversely affected thereby; provided that any the waiver of (or amendment to the financial covenant definitions in this Agreement terms of) any mandatory prepayment of the Term Loans shall not constitute an extension of any date scheduled for the payment of principal or interest or a reduction in the rate waiver or excuse of interest for purposes of this clause (i),
any such payment, (ii) except as provided in Section 2.24, increase or extend the Commitment or decrease or extend the date for payment of any Lender Fees (or decrease the Commitment Fees or L/C Participation Fees or other fees any prepayment premium set forth in Section 2.12) of any Lender without the prior written consent of such Lender Lender; provided that (it being understood that waivers x) the foregoing shall not apply to extensions effected in accordance with Section 2.22, and (y) the waiver of any condition precedent set forth in Article IV or modifications the waiver of conditions precedentany Default, covenants, Defaults mandatory prepayment or Events of Default or of a mandatory reduction in of the aggregate Commitments shall not constitute an increase or extension of the Commitments any Commitment of any Lender),
, (iii) extend amend or waive any Term modify the pro rata requirements of Section 2.17 or the sharing of payments provisions of Section 2.18 or the provisions of this Section or release all or substantially all of the value of the Guarantees under the Security Documents or all or substantially all of the Collateral (except in a transaction expressly permitted in the Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueDocuments), without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (v) modify the protections afforded to an SPC pursuant to the provisions of Section 2.18(b9.04(i) without the written consent of such SPC or (cvi) reduce the percentage contained in a manner that would by its terms alter the pro rata sharing definition of payments required thereby, the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Term Loan Commitments are included on the Closing Datedate hereof), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Issuing Bank acting as Collateral Agent. Notwithstanding the foregoing, any Loan Document may be amended or modified pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Borrowers and each other Loan Party that is a party thereto, without the consent of any of the Lenders, if such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 is beneficial to the Lenders (or the Lenders holding Loans or Commitments of any Class) and any consent by does not adversely affect the rights or obligations of any Lender pursuant to this Section 9.08 shall bind under any assignee of such LenderLoan Document.
(c) Without Notwithstanding anything to the consent contrary herein, in connection with any determination as to whether the requisite Lenders have (A) consented (or not consented) to any amendment or waiver of any Lender, the provision of this Agreement or any other Loan Parties and the Administrative Agent may (in their respective sole discretion, Document or shall, to the extent required any departure by any Loan DocumentParty therefrom, (B) enter into otherwise acted on any amendment, modification or waiver of matter related to any Loan Document, or enter into (C) directed or required the Administrative Agent or any new agreement Lender to undertake any action (or instrumentrefrain from taking any action) with respect to or under any Loan Document, to effect the grantingany Lender (other than any Lender that is a Regulated Bank or an Affiliate of a Regulated Bank) that, perfection, protection, expansion or enhancement as a result of any security its interest in any Collateral total return swap, total rate of return swap, credit default swap or additional property other derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative contract entered into pursuant to become Collateral for bona fide market making activities), has a net short position with respect to the benefit of the Secured PartiesLoans and/or Commitments (each, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (a “Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term LoansNet Short Lender”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with without the consent of the Borrowers Holdings, shall have no right to vote any of its Loans and the Administrative Agent Commitments and shall be deemed to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially have voted its interest as a Lender without discretion in the same basis proportion as the Term Loans allocation of voting with respect to such matter by Lenders who are not Net Short Lenders. For purposes of this provision, a “net short position” shall, with respect to a Lender, be the net position, if any, held by such Lender and that is remaining after deducting any long position that the Lender holds (i.e., a position (whether as an investor, lender or Revolving Facility Loansholder of debt obligations, including synthetic positions by way of derivatives such as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.credit default
Appears in 1 contract
Samples: Term Loan Credit Agreement (Houghton Mifflin Harcourt Co)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any Revolving L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or Revolving L/C Participation Fees or other fees of payable to any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments Defaults shall not constitute an increase of in the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any Loan, Revolving L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) extend the stated expiration date of any Revolving Letter of Credit beyond the Revolving Maturity Date, without the prior written consent of each Lender directly affected thereby;
(vi) amend or modify the provisions of this Section, Section 9.04(a)(i), or the definition of the terms “Required Lenders,” “Majority Lenders” ”, or any other provision hereof or of any other Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or under any other Loan Document or make any determination or grant any consent hereunderhereunder or under any other Loan Document, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vivii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests value of such the Guarantees of the Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, Parties without the prior written consent of each LenderLender and Issuing Bank; and
(viii) amend or modify any provision hereof or any other Loan Document if the effect of such amendment or modification would result in the Obligations owed to any Specified Swap Counterparty or any Cash Management Bank ceasing to be secured without the consent of such Specified Swap Counterparty or Cash Management Bank (or the Lender or Agent that is an Affiliate of such Specified Swap Counterparty or Cash Management Bank). provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, an Issuing Bank or a Swingline Lender hereunder or under the other Loan Documents without the prior written consent of the such Administrative Agent or the Agent, Collateral Agent, Issuing Bank acting as such at the effective date of such agreementor Swingline Lender, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law Law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawLaw.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, (i) technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Incremental Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable terms and conditions provided for in Section 2.20 and (ii) any Loan Document may be amended, modified, supplemented or waived with the written consent of the Administrative Agent and the Borrower without the need to obtain the consent of any Lender if such amendment, modification, supplement or waiver is executed and delivered in order to cure any an ambiguity, omission, mistakemistake or defect in such Loan Document; provided that in connection with this clause (ii), defect in no event will the Administrative Agent be required to substitute its judgment for the judgment of the Lenders or inconsistencythe Required Lenders, to and the extent Administrative Agent may in all circumstances seek the approval of the Required Lenders, the affected Lenders or all Lenders in connection with any such cure could not reasonably be expected to have a material adverse effect on the Lendersamendment, modification, supplement or waiver.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) or Article X in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “"Required Lenders,” “" "Majority Lenders” " or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.,
Appears in 1 contract
Samples: Credit Agreement (Nalco Energy Services Equatorial Guinea LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Company and the Required Lenders (or, in respect of any waiver, amendment or modification of Section 6.10, the Majority Lenders under the Revolving Facility rather than the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lendersprovided for therein; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is fees payable hereunder are due, without the prior written consent of each Lender directly and adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c2.18(c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender directly and adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Restatement Effective Date), or,
(vi) release all or substantially all the Collateral or release any Holdings, the Company, CALLC or all or substantially all of the other Subsidiary Loan Party Parties from its Guarantee under a the U.S. Collateral Agreement, as applicable, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each LenderLender adversely affected thereby,
(vii) effect any waiver, amendment or modification that by its terms directly adversely affects the rights in respect of payments or collateral of Lenders participating in any Class differently from those of Lenders participating in other Classes, without the consent of the Majority Lenders participating in the adversely affected Class (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed); provided further or
(viii) convert the currency of any Loan or any Commitment, without the prior written consent of the Lender holding such Loan or Commitment; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, the Deposit Bank or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent, the Deposit Bank or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Amendment Agreement (Celanese Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Lender or any Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the Issuing Bank Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower the Borrowers or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any a Borrower or any other Loan Party in any case shall entitle such Person the Borrowers to any other or further notice or demand in similar or other circumstances.
(b) Except as provided . Notwithstanding anything to the contrary contained herein or in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant the authority to an agreement enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or agreements in writing entered into by each party thereto and the Administrative Agent, as applicableany of them shall be vested exclusively in, and consented to by all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Required LendersAgents in accordance with Sections 7.02 and 7.03 for the benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (i) the Agent from exercising on their own behalf the rights and remedies that inure to its benefit (solely in its capacity as an Agent) hereunder and under the other Loan Documents, (ii) any Issuing Bank from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank) hereunder and under the other Loan Documents, (iii) any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender) hereunder and under the other Loan Documents, (iv) any Lender from exercising setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.17), or (v) subject to Section 8.11, any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Insolvency Law.
(b) Any amendment or waiver of any provision of this Agreement or any other Loan Document (other than the Fee Letter or any Letter of Credit Document), and any consent to any departure by a Borrower or any other Loan Party therefrom, shall be effective if the same shall be in writing and signed by the Required Lenders and the Borrowers (or by the Administrative Agent (with the prior written consent of the Required Lenders) and the Borrowers), provided that such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided further that (x) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing signed by the Administrative Agent and the Parent Borrower to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, and (y) no such agreement amendment, waiver or consent shall:
(i) decrease extend the Maturity Date of or forgive increase the stated amount of any Commitment of any Lender or reinstate any Commitment of any Lender terminated pursuant to the terms hereof without the written consent of such Lender;
(ii) postpone any date fixed by this Agreement for any scheduled payment (but not any prepayment) of principal, interest or fees due to any Lender hereunder without the written consent of such Lender;
(iii) reduce the principal amount of, or extend the final maturity of, or decrease the rate of interest specified herein on, any Loan or any L/C Disbursement, Disbursement or any interest or Fees payable hereunder without the prior written consent of each Lender directly affected thereby; provided thereby (it being understood and agreed that any amendment to change in the financial covenant definition of “Total Leverage Ratio”, “Senior Secured Leverage Ratio” or in the component definitions in this Agreement thereof, shall not constitute a reduction in the of rate of interest for purposes of this clause or any interest or Fees payable hereunder); provided, however, that (i),
(iiA) increase or extend only the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments U.S. Required Revolving Lenders shall not constitute an increase be required to waive any obligation of the Commitments U.S. Borrower to pay default interest pursuant to Section 2.07 with respect to the U.S. Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith (B) only the consent of any Lender),
(iii) extend or the Canadian Required Revolving Lenders, as applicable shall be required to waive any obligation of the Parent Borrower to pay default interest pursuant to Section 2.07 with respect to the Canadian Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith, (C) only the consent of the Australian Required Revolving Lenders shall be required to waive any obligation of the Australian Borrower to pay default interest pursuant to Section 2.07 with respect to the Australian Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith, and (D) only the consent of the Required Canadian Term Lenders shall be required to waive (1) any obligation of the Parent Borrower to pay default interest pursuant to Section 2.07 with respect to the Canadian Term Loan Installment Date Facility, including with respect to any amount payable thereunder or reduce the amount due on in connection therewith or (2) any mandatory prepayment of Canadian Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,Loans;
(iv) amend or modify the provisions of change Section 2.18(b) or (c) 2.16 in a manner that would by its terms alter the pro rata sharing of payments required thereby, thereby without the prior written consent of each Lender adversely affected thereby,thereby or change the order of application, as among the Facilities, of any prepayment or other amount specified in Section 7.05 or in the CAM Exchange Agreement from the order set forth in such Section or in such agreement in a manner that adversely affects the Lenders under any Facility without the prior written consent of (A) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders, (B) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Revolving Lenders, (C) if such Facility is the Canadian Term Loan Facility, the Required Canadian Term Lenders, and (D) if such Facility is the Australian Revolving Credit Facility, the Required Australian Lenders;
(v) amend or modify the provisions change any provision of this Section Section, or the percentage specified in definition of the terms “Required Lenders,” “Majority Required U.S. Revolving Lenders,” “Required Canadian Revolving Lenders,” “Required Canadian Term Lenders,” “Required Australian Lenders,” or “Required Revolving Lenders,” or any other provision hereof specifying the number or percentage of Lenders required to waiveamend, amend waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely directly affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orthereby;
(vi) except as expressly permitted hereunder or under any Security Document, (A) release the guaranty provided by the U.S. Borrower pursuant to the U.S. Guarantee Agreement without the written consent of each Canadian Lender and each Australian Lender, or (B) release all or substantially all of the Collateral value of the guaranties provided by the other Guarantors hereunder or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests Collateral without the written consent of such Subsidiary Loan Party is sold or otherwise disposed of each Lender;
(vii) change Section 9.04 in a transaction permitted by this Agreement, manner that imposes additional restrictions on the ability of any Lender under any Facility to assign any of its rights or obligations hereunder without the prior written consent of each Lender(A) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders, (B) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Revolving Lenders, (C) if such Facility is the Canadian Term Loan Facility, the Required Canadian Term Lenders and (D) if such Facility is the Australian Revolving Credit Facility, the Required Australian Lenders;
(viii) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding one Class of Loans differently from the rights in respect of payments due to Lenders holding another Class of Loans without the prior written consent of the Required U.S. Revolving Lenders (if the U.S. Revolving Lenders are the adversely affected Class), Required Canadian Revolving Lenders (if the Canadian Revolving Lenders are the adversely affected Class), Required Canadian Term Lenders (if the Canadian Term Lenders are the adversely affected Class) or Required Australian Lenders (if the Australian Lenders are the adversely affected Class); provided further or
(ix) amend or modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(g) without the written consent of such SPC; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Agent, an Issuing Bank or a Swing Line Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the such Agent, Issuing Bank acting as or Swing Line Lender, respectively. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder or under any other Loan Document (and any amendment, waiver or consent which by its terms requires the consent of all Lenders, all Lenders or a majority in interest of Lenders under any Facility or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lender); provided that any such at amendment, waiver or consent referred to in clause (b)(i), (ii) or (iii) above that, but for this sentence, would require the effective date prior written consent of such agreementDefaulting Lender, as applicablewill continue to require the consent of such Defaulting Lender; and provided further that any such amendment, waiver or consent requiring the consent of all Lenders, such Lender or each affected Lender that by its terms affects any Defaulting Lender more adversely than any other Lender whose consent is so required shall require the consent of such Defaulting Lender. Each No Lender or any Affiliate of a Lender shall be bound by have any waiver, amendment voting rights under any Loan Document as a result of the existence of obligations owed to it under Hedging Agreements or modification authorized by Banking Services Obligations. Notwithstanding anything to the contrary contained in this Section 9.08 and or any consent by other provision of this Agreement or any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any other Loan Document, or enter into any new agreement or instrument, to effect (A) the granting, perfection, protection, expansion or enhancement of any security interest Security Documents and related documents in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply connection with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with may be in a form reasonably determined by the Term Loans Administrative Agent and the Revolving Facility Loans Collateral Agent and the accrued interest may be, together with this Agreement, amended, supplemented and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made waived with the consent of the Borrowers Administrative Agent and the Collateral Agent at the request of the Parent Borrower without the need to obtain the consent of any other Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local law or advice of local counsel, or (ii) to cause such Security Documents or other documents to be consistent with this Agreement and the other Loan Documents and (B) this Agreement and any other Loan Document may be amended solely with the consent of the Administrative Agent and the Parent Borrower without the need to obtain the consent of any other Lender if such amendment is consummated in order (x) to correct or cure any ambiguities, errors, omissions, mistakes, inconsistencies or defects jointly identified by the Parent Borrower and the Administrative Agent, (y) to effect administrative changes of a technical or immaterial nature or (z) to fix incorrect cross-references or similar inaccuracies in this Agreement or the applicable Loan Document; provided that, in each case, the Administrative Agent shall have notified the Lenders of such amendment and the Required Lenders shall not have objected in writing to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersamendment within five Business Days of notice thereof.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent, and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person any Loan Party to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan AmendmentNeither this Agreement, neither this Agreement nor any other Loan Document (other than the Mandate Letter) nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers applicable Loan Party or Loan Parties party thereto and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agentor, as applicable, and consented to by the Administrative Agent or the Collateral Agent upon the direction of the Required Lenders); provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any interest or fees on any Loan, or forgive, waive or excuse any such payment or any part thereof, or decrease the rate of interest on, (other than the Default Rate) or fees on any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly adversely affected thereby; provided thereby (for the avoidance of doubt, it is understood that only the consent of the Borrower and the Required Lenders shall be necessary to waive, amend or modify (A) any amendment mandatory prepayment requirement prior to a prepayment becoming due and payable in accordance with the terms hereof or (B) any financial covenant definitions in this Agreement shall not constitute a reduction in hereunder (or any defined term used therein) even if the effect of such waiver, amendment or modification would be to reduce the rate of interest for purposes of this clause (ion any Loan, or to reduce any fee payable hereunder, in each case, to the extent such interest or fees is not yet accrued, due and payable),
, (ii) increase or extend the Commitment of any Lender or decrease the Commitment amount of or extend the date for payment of any Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend amend or waive modify the pro rata requirements of Section 2.16, the provisions of clause (x) of the first sentence of Section 9.04(a) or the provisions of this Section 9.08, release any Term Loan Installment Date Guarantor (other than in connection with the disposition of such Guarantor in a transaction permitted by Section 6.05), or reduce release all or substantially all of the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueCollateral, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or modify change the provisions of Section 2.18(b) or (c) any Loan Document in a manner that would by its terms alter adversely affects the pro rata sharing rights in respect of payments required therebydue to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (v) reduce the percentage contained in the definition of the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
or (vi) release all impose any additional restrictions on any Lender’s ability to assign any of its rights or substantially all the Collateral or release obligations hereunder (including any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, amendment to Section 9.04) without the prior written consent of each the Lenders adversely affected thereby; provided, however, that, notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to consent to any such amendment, modification or waiver, other than any such amendment, modification or waiver which affects the rights or obligations of a Defaulting Lender differently than the rights or obligations of the other Lenders or increases or extends the Commitment of, or forgives or decreases the principal amount of, or extends the maturity of any scheduled principal payment date or date for the payment of any interest on any Loan of, such Defaulting Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent or the Issuing Bank Swing Line Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent, the Collateral Agent or the Issuing Bank acting as such at the effective date of such agreementSwing Line Lender, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restatedi) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) Swing Line Lender may amend this Agreement in accordance with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing Sections 2.24 and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable 2.25 and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, the Mandate Letter may be amended by the parties thereto in accordance with its terms. Notwithstanding anything to the extent contrary contained herein, any such cure could not reasonably be expected amendments shall become effective without any further consent of any other party to have a material adverse effect on the Lenderssuch Loan Document.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Lender or any Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Subject to Section 2.20 with respect 2.24 and clause (d) below, and except for those actions expressly permitted to a New Term Loan Amendmentbe taken by the Administrative Agent, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each Parties that are party thereto and are affected by such waiver, amendment or modification and acknowledged by the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive reduce the principal amount of, or extend or waive any scheduled amortization payment or the final scheduled maturity ofdate of or date for the payment of any interest on, any Loan or any date for reimbursement of an LC Disbursement, forgive any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C LC Disbursement, without the prior written consent of each Lender directly and adversely affected thereby; provided thereby (it being understood that any amendment change to the financial covenant component definitions in this Agreement shall not constitute a reduction in of Excess Cash Availability affecting the rate determination of interest for purposes and the waiver of this clause (ia Default, Event of Default or default interest shall only require the consent of the Borrower and the Required Lenders),
, (ii) increase or extend the Commitment (provided that the Administrative Agent may make Protective Advances as set forth in Section 2.25) or decrease or extend the date for payment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender Lender, (iii) amend or modify the provisions of Section 2.17, the provisions of Section 2.18, the provisions of Section 9.04(j) (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments any change to Section 6.04 shall not constitute an increase only require approval of the Commitments Required Lenders) or the provisions of any Lenderthis Section (except as set forth below) or release all or substantially all of the Guarantors or all or substantially all of the Collateral (except as permitted under Section 6.04 and the Guarantee and Collateral Agreement),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) waive or amend or modify the provisions of this Section 2.18(b9.08(b)(iv) or (cv) reduce the percentage contained in a manner that would by its terms alter the pro rata sharing definition of payments required thereby, the term “Required Lenders” or the term “Supermajority Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans Commitments and Commitments are included extensions of credit thereunder on the Closing Date), or
date hereof and this Section 9.08 may be amended to reflect such extension of credit) or (vi) release all or substantially all increase the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, advance rates set forth in the case definition of a Subsidiary Loan Partythe Borrowing Base or amend the definitions of Eligible Accounts, all Eligible Inventory, Borrowing Base or substantially all Reserves which has the Equity Interests effect of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, increasing Availability without the prior written consent of each Lenderthe Supermajority Lenders; provided further provided, further, that (w) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, any Issuing Bank or the Issuing Bank Swingline Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent Agent, such Issuing Bank or the Issuing Bank acting Swingline Lender, as such the case may be, and (x) Section 9.04(i) may not be amended, waived or otherwise modified without the consent of each Granting Lender all or any part of whose Loans are being funded by an SPC at the effective date time of such agreementamendment, as applicable. Each Lender shall be bound by any waiver, amendment waiver or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lenderother modification.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, in addition to any credit extensions and related Incremental Amendments effectuated without the consent of Lenders in accordance with Section 2.24, this Agreement (including this Section 9.08 and Section 2.17) may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the credit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees Fees in respect thereof and thereof, (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersLenders and other definitions related to such new credit facilities and (iii) to provide customary class protection for any additional credit facilities.
(ed) In additionEach waiver, notwithstanding amendment, modification, supplement or consent made or given pursuant to this Section 9.08 shall be effective only in the foregoingspecific instance and for the specific purpose for which given, this Agreement may be amended with the written consent and such waiver, amendment, modification or supplement shall apply equally to each of the Administrative AgentLenders and shall be binding on the Loan Parties, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term LoansLenders, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to and all future holders of the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the LendersCommitments.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the Issuing Bank any L/C Issuer or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the Issuing Bank each L/C Issuer and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Parent, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Parent, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the L/C Issuer may have had notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Sections 2.22, 2.23, 2.25, 2.28 and 6.13, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Parent, the Borrowers Borrower and the Administrative Agent (and consented to by the Required Lenders or, in the case of a waiver of the Financial Performance Covenant, the Required Covenant Lenders or, in the case of an amendment or modification of the Financial Performance Covenant as it applies to any Facility, the Required Class Lenders of such Facility) and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementObligation, extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date or reduce the premium payable in the event of a Repricing Transaction, without the prior written consent of each Lender directly adversely affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) (x) increase the amount of or extend the maturity date of the Commitment of any Lender or (y) decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (which, notwithstanding the foregoing, in the case of clause (y), such consent of such Lender shall be the only consent required hereunder to make such modification) (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or Date, reduce the amount due on any Term Loan Installment Date Date, or extend any date on which payment of interest on any Loan or any L/C Disbursement Obligation or any Fees is due, without the prior written consent of each Lender adversely affected therebythereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification),
(iv) amend Section 7.02, Section 2.09(b) (to the extent requiring any reduction of the Revolving Facility Commitments to be applied ratably among the Lenders) or modify the provisions of Section 2.18(b2.19(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify reduce the provisions voting rights of any Lender under this Section or the definition of the terms “Required Lenders,” “Majority Lenders” 9.08 or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each such Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the value of the guarantees by the Subsidiary Loan Party from its Parties under the Guarantee under a Collateral AgreementAgreements, unless, in each case, to the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is extent sold or otherwise disposed of in a transaction permitted by this AgreementAgreement or the other Loan Documents, without the prior written consent of each Lender;
(vii) amend Section 1.05 without the prior written consent of each Revolving Facility Lender and each L/C Issuer; provided further or
(viii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another Facility, without the consent of the Required Class Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment required by Section 2.12 so long as the application of any prepayment still required to be made is not changed); provided, further, that (A) no such agreement amendment shall amend, modify or otherwise affect the rights or duties of the Administrative Agent any Agent, Swingline Lender or the Issuing Bank an L/C Issuer hereunder without the prior written consent of the Administrative Agent such Agent, Swingline Lender or the Issuing Bank such L/C Issuer acting as such at the effective date of such agreementamendment, as applicableapplicable and (B) no amendment, waiver or consent shall amend, modify or waive any condition precedent to any extension of credit under the Revolving Facility set forth in Section 4.01 without the written consent of the Required Class Lenders under such Revolving Facility (it being understood that (i) amendments of any other provision of any Loan Document, including any representation or warranty, any covenant or any Default or Event of Default, shall be deemed to be effective for purposes of determining whether the conditions precedent set forth in Section 4.01 have been satisfied regardless of whether the Required Class Lenders under the Revolving Facility shall have consented to such amendment, modification or waiver and (ii) such consent of the Required Class Lenders under the applicable Revolving Facility shall be the only consent required hereunder to make such modifications to the conditions precedent set forth in Section 4.01 for extensions of credit under the Revolving Facility). Notwithstanding the foregoing, no consent of any Defaulting Lender shall be required for any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender unless such waiver, amendment or modification by its terms would affect such Defaulting Lender differently than other affected Lenders; provided that the Commitment of any Defaulting Lender may not be increased in amount or the maturity thereof extended without the consent of such Lender, and no principal or interest owing to any Defaulting Lender may be reduced, or the date on which payment of such principal or interest is due extended, without the consent of such Lender. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any successor or assignee of such Lender.
(c) Without the consent of any LenderLender or L/C Issuer, the Loan Parties and the Administrative Agent or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, to include the Other First Lien Secured Parties in the benefit of the Security Documents in connection with the incurrence of any Other First Lien Debt, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement, in all cases subject to the Agreed Security Principles or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Parent and the Borrowers Borrower (ai) to add one or more additional credit or debt facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit or debt facilities in any determination of the Required Lenders or Required Class Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of Parent, the Borrowers Borrower and the Administrative Agent to the extent necessary (A) to (i) integrate any New Incremental Term Commitments Loan Loans, any Refinancing Term Loans or New any Replacement Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and applicable, (iiB) to integrate any Other First Lien Debt or (C) to cure any ambiguity, omission, mistake, defect or inconsistency; provided, with respect to this clause (C), that (i) such modifications do not adversely affect the rights of any Lender or other holder of Obligations in any material respect and (ii) the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.
(f) Notwithstanding the foregoing, this Agreement may be amended, (i) with the written consent of each Revolving Facility Lender, the Administrative Agent, Parent and the Borrower to the extent such cure could not reasonably be expected necessary to have a material adverse effect on integrate any Alternative Currency and (ii) with the Lenderswritten consent of the Administrative Agent, L/C Issuer, Parent and the Borrower to the extent necessary to integrate any L/C Alternative Currency.
Appears in 1 contract
Samples: Credit Agreement (EVERTEC, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect Subject to a New Term Loan Amendmentthe Intercreditor Agreement, neither this Agreement nor any other the Loan Document Documents nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) and acknowledged by the Administrative Agent (y) in it being understood that, notwithstanding the case foregoing, amendments, modifications and waivers to the Intercreditor Agreement shall only require the consent of Borrower or any other Loan Document, pursuant Party to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lendersextent set forth therein); provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof (except to the extent permitted by Section 2.28) or extend any scheduled principal payment (but not prepayment) date or date for the payment of any interest on or any fees (including any prepayment fee or premium (including, for the avoidance of doubt, the premiums and/or fees set forth in Section 2.11(e))) payable with respect to any Term Loan, or waive or excuse any such payment or any part thereof, or decrease the rate of interest onon or reduce any fees (including any prepayment fee or premium (including, for the avoidance of doubt, the fees set forth in Section 2.11(e))) payable with respect to any Loan or any L/C DisbursementTerm Loan, without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) except to the extent permitted by Section 2.28, increase or extend the Commitment or decrease or extend the date for payment of any Lender fees (including any prepayment fee or decrease premium (including, for the Commitment Fees or L/C Participation Fees or other avoidance of doubt, the premiums and/or fees set forth in Section 2.11(e))) of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due[reserved], without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b9.04(j) or the provisions of this Section 9.08 or release one or more Guarantors (c) other than in connection with the sale of such Guarantor in a manner transaction permitted by Section 6.04 or as otherwise expressly provided in this Agreement or any Security Document or the Intercreditor Agreement) that would by its terms alter represent all or substantially all of the pro rata sharing value of payments required therebythe guarantees of the Obligations pursuant to the Loan Documents or all or substantially all of the Collateral, without the prior written consent of each Lender adversely affected thereby,
Lender, (v) amend impose any additional restriction on any Lender’s ability to assign any of its rights or obligations without the written consent of such Lender, (vi) change the relative priorities of the Obligations secured by the Collateral without the prior written consent of Lenders holding a majority in interest of the outstanding Term Loans and unused Commitments of each adversely affected Class, (vii) modify the protections afforded to an SPV pursuant to the provisions of this Section 9.04(i) without the written consent of such SPV or (viii) reduce the percentage contained in the definition of the terms term “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Term Loan Commitments are included on the Closing Datedate hereof), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent or any of the Issuing Bank Joint Lead Arrangers hereunder or under any other Loan Document without the prior written consent of the Administrative Agent, the Collateral Agent or any of the Issuing Bank acting as such at the effective date of such agreementJoint Lead Arrangers, as applicable. Each Lender shall be bound by any waiver, ; provided further that no amendment or modification authorized by to Section 7.02 that directly and adversely affects the relative priorities of any Secured Party (other than a Lender or Agent, in each case in such capacity, subject to the other provisions of this Section 9.08 and 9.08) to receive applications of proceeds in respect of the Obligations will have any effect as to such Secured Party without the consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such LenderSecured Party, except for any such amendment or modification to reflect the addition of one or more Classes of Term Loans in a manner consistent with the treatment of Obligations under Section 7.02 immediately prior to such amendment or modification.
(c) Notwithstanding anything in clause (b) or otherwise herein to the contrary, (i) any amendment or modification that would extend the final maturity date of the Term Loans of any Lender, with such Lender’s prior written consent and in accordance with Section 2.28, or increase the rate of interest and fees payable on the extended Term Loans of such Lender, or make any other amendment or modification pursuant to Section 2.28, shall not require the applicable Class of prior written consent of each Lender, so long as such extension is offered to all Lenders holding such Term Loans, on a pro rata basis based on the aggregate principal amount of such Class of Term Loans then outstanding, (ii) the payment in full of any Term Loans on the applicable final maturity date of such Term Loans and the payment of interest and fees made on account of the Commitments and/or Term Loans of any Lender as required under this Agreement after giving effect to an amendment or other modification described in the preceding clause (i), shall not be deemed to violate Section 2.17 or be an event that would require the purchase of participations pursuant to Section 2.18; provided that, except as expressly set forth in the preceding clause (i), no such amendment or modification shall alter the pro rata requirements of Section 2.17, (iii) if the Borrower shall request (A) the release of any Collateral to be sold to a Person that is not a Loan Party as part of any Asset Sale or other disposition permitted under Section 6.04 and shall deliver to the Collateral Agent a certificate to the effect that such Asset Sale or other disposition and the disposition of the proceeds thereof will comply with the terms of this Agreement or (B) the subordination of the Lien of the Collateral Agent, for the benefit of the Secured Parties, on any item of Collateral to any Lien permitted by Section 6.02(i) or Section 6.02(l) and shall deliver to the Collateral Agent a certificate to the effect that the incurrence of such other Lien on the Collateral will comply with the terms of this Agreement, then the Collateral Agent shall and is hereby authorized to, without the consent of any Lender, execute and deliver all such instruments as may be required to effect the release of such Collateral (in the case of an Asset Sale or other disposition described in clause (A)) or the subordination of the Lien of the Collateral Agent, for the benefit of the Secured Parties, in such Collateral (in the case of such other Lien as described in clause (B)), (iv) the Collateral Agent, the Borrower and the applicable Guarantors may amend, supplement or otherwise modify any Security Document so long as such amendment, supplement or other modification is not materially adverse to any Secured Party and such amendment shall become effective without any further consent of any other party to such Security Document. For the avoidance of doubt, any amendment or modification of the type described in the preceding clause (i) extending the final maturity date of the Term Loans of any Lender will require the prior written consent of such Lender (but not the Required Lenders) and (v) the consent of the Lenders or the Required Lenders, as the case may be, shall not be required to make any such changes necessary to be made in connection with any Refinancing Amendment permitted hereunder.
(d) The Administrative Agent and the Borrower may amend any Loan Document (including, for the avoidance of doubt, any exhibit, schedule or other attachment to any Loan Document) to (i) correct any errors, mistakes, omissions, defects or inconsistencies (including, but not limited to, an incorrect cross-reference), or to effect administrative changes (including with respect to parallel debt provisions) that are not adverse to any Lender and (ii) provide for the appointment of one or more syndication agents and/or documentation agents. Notwithstanding anything to the contrary contained herein, any such amendment shall become effective without any further consent of any other party to such Loan Document other than the Administrative Agent and the Borrower.
(e) Without the consent of any Lenderother person, the applicable Loan Party or Loan Parties and the Administrative Agent and/or Collateral Agent may (in its or their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent Requirements of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingLaw.
(f) Notwithstanding the foregoing, technical and conforming modifications no Lender consent is required to effect any amendment or supplement to any Customary Intercreditor Agreement (i) that is for the purpose of adding the holders of Credit Agreement Refinancing Indebtedness (or a representative with respect thereto) as parties thereto, as contemplated by the terms of such Customary Intercreditor Agreement (it being understood that any such amendment, modification or supplement may make such other changes to the applicable Customary Intercreditor Agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing and provided, that such other changes are not adverse, in any material respect, to the interests of the Lenders) or (ii) that is expressly contemplated by such Customary Intercreditor Agreement; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Collateral Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the Collateral Agent, as applicable.
(g) Notwithstanding anything to the contrary contained in this Section 9.08, the Guarantee Agreement and any Security Document and related documents executed by any Company in connection with this Agreement and the other Loan Documents may be made in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the consent of the Borrowers and the Administrative Agent or the Collateral Agent, as applicable, at the request of the Borrower without the need to obtain the extent necessary to consent of any other Lender if such amendment or waiver is delivered in order (i) integrate any New Term Commitments to comply with local law or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loansadvice of local counsel, as applicable and (ii) to cure any ambiguity, omission, mistake, defect ambiguities or inconsistency, defects or (iii) to cause such documents to be consistent with this Agreement and the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersother Loan Documents (including by adding additional parties as contemplated herein).
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, any Lender or the Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendmentparagraph (c) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended amended, supplemented or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (yor the Administrative Agent, with the consent of the Required Lenders) (and, prior to the Completion of the Primary Syndication of the Commitments, the Arrangers) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto the Administrative Agent and the Administrative AgentLoan Party or Loan Parties that are parties thereto, as applicable, and consented to by in each case with the written consent of the Required LendersLenders (and, prior to the Completion of the Primary Syndication of the Commitments, the Arrangers); provided, however, that (x) the Borrower and the Administrative Agent may enter into an amendment to effect the provisions of Section 2.23(b) or 2.24(b) upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as the case may be (and any such amendment shall in any event be deemed to have occurred upon such effectiveness), and (y) no such agreement shall
under this Section 9.8(b) shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or any scheduled principal payment date or date for the payment of any interest on any Loan or any date for reimbursement of an L/C Disbursement, or waive or excuse any such payment or any part thereof, or decrease the rate of interest on, on any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
, (ii) increase or extend the Commitment or decrease or extend the date for payment of any Lender Fees of or decrease the Commitment Fees or L/C Participation Fees or any other fees of amount actually due and payable hereunder to any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedentLender, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend amend or waive modify the pro rata requirements of Sections 2.16 and 2.17, the provisions of this Section, or release any Term Loan Installment Date Guarantor party to the Guarantee and Collateral Agreement (except as contemplated by this Agreement) or reduce limit such Guarantor’s liability under the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueGuarantee and Collateral Agreement, without the prior written consent of each Lender adversely affected thereby,
Lender, (iv) amend or modify change the provisions (including Sections 2.12 and 2.13 of Section 2.18(bthis Agreement) or (c) of any Loan Document in a manner that would by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class, (v) release all or a substantial portion of the Collateral from the Liens of the Security Documents or alter the pro rata sharing relative priorities of payments required therebythe Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations or as contemplated by Section 9.18), in each case without the written consent of each Lender, (vi) reduce the percentage contained in the definition of the term “Required Lenders” without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans Term Loan Commitments and Revolving Credit Commitments are included on the Closing Date), or
date hereof) or (vivii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each LenderLender directly affected thereby, amend the definition of the term “Interest Period” in any way which would permit Interest Periods to be in excess of six months; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Issuing Bank or the Swingline Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or Agent, the Issuing Bank acting as such at or the effective date Swingline Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such agreement, as applicable. Each Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral excluded for the benefit a vote of the Secured Parties, or as required by local law to give effect to, or protect Lenders hereunder requiring any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders).
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Knoll Inc)
Waivers; Amendment. (a) No failure or delay of by the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowof this Section 11.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank may have had notice or demand on any Borrower or any other Loan Party in any case shall entitle knowledge of such Person to any other or further notice or demand in similar or other circumstancesDefault at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent or Collateral Agent, as applicable, and consented to by the Loan Party or Loan Parties that are parties thereto, in each case with the written consent of the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease increase the Dollar amount of the Commitment of any Lender without the written consent of such Lender or increase the Commitments of all Lenders without the consent of each Lender, (ii) reduce or forgive the principal amount of, of any Loan or extend the final maturity of, LC Disbursement or decrease reduce the rate of interest onthereon (other than to waive default interest under Section 2.06(c) to the extent a waiver of the underlying default giving rise to such default interest does not require a vote of all Lenders), or reduce or forgive any Loan or any L/C DisbursementFees payable hereunder, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend postpone the maturity of any Loan, or waive the required date of reimbursement of any Term Loan Installment Date LC Disbursement, or any date for the payment of any interest or fees payable hereunder, or reduce the amount due on of, waive or excuse any Term Loan Installment Date such payment, or extend postpone the scheduled date of expiration of any Commitment or postpone the scheduled date on which payment of interest on expiration of any Loan or any L/C Disbursement or any Fees is dueLetter of Credit beyond the Final Maturity Date, without the prior written consent of each Lender adversely affected thereby,
, (iv) amend or modify the provisions of change Section 2.18(b2.14(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments or set-offs required thereby, without the prior written consent of each Lender adversely affected thereby,
Lender, (v) amend or modify change the provisions percentage set forth in the definitions of this Section or the definition of the terms “Supermajority Lenders” and “Required Lenders,” “Majority Lenders” or any other provision hereof of any Loan Document (including this Section 11.02) specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunderthereunder, without the prior written consent of each Lender adversely affected thereby (it being understood thator each Lender of such Class, with as the case may be), (vi) release Holdings or any other Guarantor from its Guarantee (except as expressly provided in Article VII), or limit its liability in respect of such Guarantee, without the written consent of the Required Lenderseach Lender, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vivii) release all or substantially all of the Collateral from the Liens of the Security Documents or release alter the relative priorities of the Obligations entitled to the Liens of the Security Documents (except in
(1) decrease the amount of Excess Availability referred to in the definition of the term “Permitted Acquisition” and Sections 6.06(e), 6.06(g), 6.08, 9.01(e) and 9.01(h), (2) amend or modify the definitions of “Borrowing Base,” “Incorporated Borrowing Base,” “Borrowing Base Limitation Amount,” “Estimated Solvency Amount,” or any Subsidiary Loan Party from its Guarantee under a Collateral Agreementother defined term used within such definitions the amendment or modification of which results in more credit being made available or (3) amend or modify Section 10.10 (including any amendment or modification to clauses (b)(i), unless(ii) and (iii) of such Section), in the each case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each LenderSupermajority Lenders; provided further provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or Agent, the Collateral Agent, the Issuing Bank hereunder or the Swingline Lender without the prior written consent of the Administrative Agent or Agent, the Collateral Agent, the Issuing Bank acting as such at or the effective date of such agreementSwingline Lender, as applicable. Each Lender shall be bound by the case may be, and (2) any waiver, amendment or modification authorized of this Agreement that by its terms affects the rights or duties under this Agreement of the Revolving Lenders may be effected by an agreement or agreements in writing entered into by the Borrowers and requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 9.08 11.02(b) if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Borrowers, the Required Lenders and any consent the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank, the Collateral Agent and the Swingline Lender) if (x) by any Lender pursuant to this Section 9.08 shall bind any assignee the terms of such Lenderagreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.
(c) Without If, in connection with any proposed change, waiver, discharge or termination of the provisions of this Agreement that requires unanimous approval of all Lenders as contemplated by Section 11.02(b) (other than clause (iii) of such Section), the consent of any Lender, the Loan Parties and Supermajority Lenders is obtained but the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities of such other Lenders whose consent is required is not obtained, then the Borrowers shall have the right to replace all, but not less than all, of such non-consenting Lender or Lenders (in addition to New Term Loans so long as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the all non-consenting Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”are so replaced) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life one or more Persons pursuant to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans Section 2.16 so long as at the time of such refinancing replacement each such new Lender consents to the proposed change, waiver, discharge or termination; provided, however, that the Borrowers shall not have the right to replace a Lender solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to paragraph (diii) of Section 11.02(b); provided further that each replaced Lender receives payment in full of the principal of and interest accrued on each Loan made by it and all other terms applicable amounts owing to such Replacement Term Loans shall be substantially identical to, it or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide accrued for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancingits account under this Agreement.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Massey Energy Co)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be 162 effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative AgentAgent (or, as applicablein the case of any Security Documents, the Collateral Agent if so provided therein) and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C – BA Disbursement, or extend the stated expiration of any Letter of Credit or Bankers’ Acceptance beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby; , except as provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (iSection 2.05(c),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C C-BA Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C – BA Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) 5.02 of the Collateral Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms term “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of Holdings, the Company or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or 163 otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender,
(vii) increase any of the percentages set forth in the definition of the Borrowing Base without the consent of all of the Lenders; provided further or
(viii) increase the Incremental Revolving Facility Commitment above $150 million or add any other Indebtedness under the Facility without the prior written consent of each Lender; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent, the Documentation Agent or any LenderJoint Lead Arranger or any Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Subject to Section 2.20 with respect to a New Term Loan Amendment2.14(b) and Section 9.08(e) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Loan Parties and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each Loan Party party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest (except as provided in the definition of “Applicable Margin” or as provided in Section 2.14) on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the latest Maturity Date in effect for the Revolving Facility Commitments of the applicable Class (except as provided in Section 2.05(c)), without the prior written consent of each Lender directly adversely affected thereby; provided that any amendment thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (imake such modification),;
(ii) increase or extend the Commitment of any Lender Lender, or decrease the Commitment Fees or (except as provided in the definition of “Applicable Commitment Fee”), L/C Participation Fees or any other fees Fees of any Lender Lender, without the prior written 017670-0129-Active.26122382.14 consent of such Lender (it being understood which, notwithstanding the foregoing, such consent of such Lender shall be the only consent required hereunder to make such modification); provided that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender directly adversely affected thereby,thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification);
(iv) amend or modify the provisions of Section 2.18(b) or (c) 7.02 in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,thereby (which, notwithstanding the foregoing, such consent of such Lender directly adversely affected thereby shall be the only consent required hereunder to make such modification), except as provided in Sections 9.08(d) and (e);
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” ”, “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orexcept as provided in Sections 9.08(d) and (e);
(vi) release the Borrower or all or substantially all of the Collateral or release any Subsidiary Loan Party Parties from its Guarantee their respective Guaranties under a Collateral Agreement, this Agreement unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary any Loan Party is sold or otherwise disposed (other than the Borrower), such entity ceases to constitute a Loan Party as a result of in a transaction permitted by this Agreementnot prohibited hereunder on the date hereof, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in another Facility, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11 so long as the application of any prepayment or Commitment reduction still required to be made is not changed), except as provided in Section 9.08(e);
(viii) amend or modify the definition of “Revolving Facility Percentage” without the written consent of all Revolving Facility Lenders; or 017670-0129-Active.26122382.14
(ix) amend or modify any condition in Section 4.01 without the written consent of the Majority Lenders participating in the adversely affected Facility; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent Agent, Swingline Lender or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent Agent, Swingline Lender or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee Assignee of such Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have the right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be affected with the consent of the applicable Lenders other than Defaulting Lenders), except that (w) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender, (x) the principal amount of any Loan or any L/C Disbursement may not be decreased or forgiven without the consent of such Lender, (y) the rate of interest (except as provided in the definition of “Applicable Margin” or as provided in Section 2.14) on any Loan or any L/C Disbursement may not be decreased without the consent of such Lender and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms disproportionately adversely affects any Defaulting Lender relative to other affected Lenders shall require the consent of such Defaulting Lender.
(c) Without the consent of any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral (including any Letter of Credit Support (provided, however, that, with respect to any Letter of Credit Support relating to any Continuing Letter of Credit, consent of the applicable Issuing Bank shall be required)) or additional property to become Collateral for the benefit of the Secured Lender Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Lender Parties, in any property or so that the security interests therein comply with applicable lawlaw or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit to be outstanding hereunder from time to time outstanding thereunder and the accrued interest and fees and other obligations in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees and other obligations in respect thereof and (bii) to include appropriately the Lenders holding holders of such extensions of credit facilities in any determination of the requisite lenders required hereunder, including the Required Lenders; provided that, notwithstanding anything to the contrary set forth in this Agreement or in any other Loan Document, any Collateral (including any Letter of Credit Support) that is delivered to the Administrative Agent (or to 017670-0129-Active.26122382.14 the applicable Issuing Bank, in the case of Letter of Credit Support relating to any Continuing Letter of Credit) to support certain Obligations in accordance of the terms hereof shall be held solely for the benefit of the Lender Parties to whom such Obligations are owed and shall not be shared with any other Lender Parties at any time that such Obligations remain outstanding.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A) to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistencyinconsistency or (B) to integrate any Incremental Commitments in a manner consistent with Section 2.21, including, with respect to Other Revolving Loans (and Commitments with respect thereto), as may be necessary to establish such Other Revolving Loans (and Commitments with respect thereto) as a separate Class or tranche from the existing Loans or Commitments.
(f) With respect to the extent incurrence of any secured or unsecured Indebtedness, the Borrower may elect (in its discretion, but shall not be obligated) to deliver to the Administrative Agent a certificate of a Responsible Officer of the Borrower or of its general partner, as applicable, at least three Business Days prior to the incurrence thereof (or such cure could not shorter time as the Administrative Agent may agree in its reasonable discretion), together with either drafts of the material documentation relating to such Indebtedness or a description of such Indebtedness (including a description of the Liens intended to secure the same or the subordination provisions thereof, as applicable) in reasonably sufficient detail to be expected able to have a material adverse effect on make the Lendersdeterminations referred to in this paragraph, which certificate shall state that the Borrower or its general partner, as applicable, has determined in good faith that such Indebtedness satisfies the requirements of the applicable provisions of Sections 6.01 (taking into account any other applicable provisions of this Section 9.08), in which case such certificate shall be conclusive evidence thereof.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender a Holder in exercising any power or right or power hereunder or under any Loan other Investment Document shall operate as a waiver thereof, thereof nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders Holders hereunder and under the other Loan Investment Documents are cumulative and are not exclusive of any rights or remedies that they it would otherwise have. No waiver of any provision of this Agreement or any other Loan Investment Document or consent to any departure by any Borrower or any other Loan Party the Credit Parties therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party the Credit Parties in any case shall entitle such Person the Credit Parties to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor No amendment or waiver of any provision hereunder or any other Loan Document Investment Document, nor consent to any provision hereof or thereof may departure by any Credit Party therefrom, shall in any event be waived, amended or modified except (x) in effective unless the case of this Agreement, pursuant to an agreement or agreements same shall be in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to signed by the Required LendersHolders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such agreement shall
(i) decrease no amendment, waiver or forgive consent shall, unless in writing and signed by all of the Credit Parties do any of the following at any time: (A) waive any of the conditions specified in Section 3.1, (B) reduce or limit the obligations of any Guarantor or release such Guarantor or otherwise limit such Guarantor's liability with respect to the Obligations owing to the Credit Parties, or (C) amend this Section 9.8(b); and (ii) no amendment, waiver or consent shall, unless in writing and signed by all of the Holders: (A) reduce the principal amount of, or extend the final maturity of, or decrease the stated rate of interest on, any Loan the Debentures held by such Holder or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees fees or other fees of any Lender without amounts stated to be payable hereunder to such Holder; or (B) postpone the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase final maturity of the Commitments of any Lender),
(iii) extend Debentures held by such Holder or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which fixed for any payment of interest on any Loan the Debentures held by such Holder or the fees hereunder or any L/C Disbursement or any Fees is due, without Guaranteed Obligations payable under the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Guaranty Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Loan Agreement (Headwaters Inc)
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21 or 2.23, in the definition of “Permitted Restructuring Transactions” or in the Intercreditor Agreement or any other intercreditor agreement entered into by the Borrower and the Administrative Agent, to the extent otherwise provided for therein, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that except as expressly set forth in Section 2.21 or 2.23, no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided that any amendment to the financial covenant “Borrowing Base,” “Excess Availability” and related definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such each Lender directly affected thereby (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend change the definition of the term “Borrowing Base” or modify any component definition thereof if as a result thereof the provisions amounts available to be borrowed by the Borrower would be increased (provided that the foregoing shall not limit the discretion of Section 2.18(b) the Administrative Agent to change, establish or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, eliminate any Reserves without the prior written consent of any Lenders), in each Lender adversely affected thereby,case without the prior written consent of the Super Majority Lenders;
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms terms, “Required Lenders,” “Super Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders and Super Majority Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vi) release all or substantially all the Collateral or release any of Holdings, the Borrower or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a Collateral Agreementthe applicable Security Document, unless, in the case of a Subsidiary Loan Partyeach case, all any assets or substantially all the Equity Interests of such Subsidiary Loan Party is are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, except in connection with a “credit bid” undertaken by the Administrative Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 1129(b)(2)(A)(ii) or otherwise under the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release); provided further or
(vii) change the order of application of proceeds of Collateral set forth in Section 2.18(b) or modify the ratable sharing of payments required thereby or required by Section 2.18(c) without the prior written consent of each Lender directly adversely affected thereby; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank Bank, as applicable, acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c) Without the consent of any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoingforegoing (but without limiting the rights of the Lenders and the Agents under the provisos to the preceding clause (b)), this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof thereof, and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders or the Super Majority Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans.
(f) Notwithstanding anything to the contrary herein, as applicable no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (1) the Commitment of such Lender may not be increased or extended without the consent of such Lender, (2) the date on which payment of interest on any Loan or any L/C Disbursement or any fees is due may not be extended without the prior written consent of such Lender, to the extent such Lender is adversely affected thereby, and (ii3) this Section 10.08 may not be amended or modified without the prior written consent of such Lender to the extent such Lender is adversely affected thereby.
(g) The Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement to cure any ambiguity, omission, mistake, defect or inconsistency, to so long as such amendment, modification or supplement does not adversely affect the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersrights of any Lender.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Verso Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative AgentAgent (or, as applicablein the case of any Security Documents, the Collateral Agent if so provided therein) and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) shall decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C – BA Disbursement, or extend the stated expiration of any Letter of Credit or Bankers’ Acceptance beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby; , except as provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (iSection 2.05(c),
(ii) , increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C C-BA Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or , NYDOCS01/1270096.12 Xxxxx – A&R Revolving Credit Agreement extend any date on which payment of interest on any Loan or any L/C – BA Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) , amend or modify the provisions of Section 2.18(b) or (c) 5.02 of the Collateral Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) , amend or modify the provisions of this Section 9.08 or the definition of the terms term “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any of Holdings, the Company or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties increase any of the Administrative Agent or percentages set forth in the Issuing Bank hereunder without the prior written consent definition of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without Borrowing Base without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit all of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.or
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the Issuing Bank any L/C Issuer or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the Issuing Bank each L/C Issuer and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Parent, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Parent, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the L/C Issuer may have had notice or knowledge of such Default at the time.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Sections 2.22, 2.23, 2.25, 2.28 and 6.13, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Parent, the Borrowers Borrower and the Administrative Agent (and consented to by the Required Lenders or, in the case of a waiver of the Financial Performance Covenant, the Required Covenant Lenders or, in the case of an amendment or modification of the Financial Performance Covenant as it applies to any Facility, the Required Class Lenders of such Facility) and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.:
Appears in 1 contract
Samples: Credit Agreement (EVERTEC, Inc.)
Waivers; Amendment. (a) No failure or delay on the part of the Administrative Agent, either Senior Managing Agent, the Issuing Bank Managing Agents, the Fronting Bank, the Swingline Lender, the Collateral Agent or any Lender in exercising any power or right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance discontinuation of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Senior Managing Agents, the Managing Agents, the Fronting Bank, the Swingline Lender, the Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other the Loan Party Parties therefrom shall in any event be effective unless the same shall be permitted by paragraph paragraphs (b) or (c) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other the Loan Party Parties in any case shall entitle such Person the Loan Parties to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor or any of the other Loan Document Documents nor any provision hereof or thereof may be waived, amended or modified except (xi) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by JSC, JSCE, the Borrowers Borrower and the Required Lenders and Lenders, (yii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.108
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term B Loan Installment Date or reduce the amount due on any Term B Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Fourth Amendment Effective Date), or;
(vi) release all or substantially all the Collateral or release any of the Borrower or any Subsidiary Loan Party Guarantor from its Guarantee under a Collateral AgreementGuarantee, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of unless such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreementrelease occurs pursuant to Section 9.18, without the prior written consent of each Lender;
(vii) effect any waiver, amendment or modification that by its terms adversely affects the rights in respect of payments or collateral of Lenders participating in any Facility differently from those of Lenders participating in other Facilities, without the consent of the Majority Lenders participating in the adversely affected Facility (it being agreed that the Required Lenders may waive, in whole or in part, any prepayment or Commitment reduction required by Section 2.11); provided further or
(viii) expressly change or waive any condition precedent in Section 4.02 to any Revolving Facility Borrowing without the written consent of the Majority of Lenders under the Revolving Facility; provided, further, that (A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicableapplicable and (B) any (x) amendment or modification to Section 6.10, 6.11 or 6.15 (or for the purposes of determining compliance with Section 6.10, 6.11 or 6.15, any defined terms used therein), (y) waiver of any Default or Event of Default resulting from a breach of Section 6.10, 6.11 or 6.15 or (z) alteration of the rights or remedies of the Required Lenders arising pursuant to Article VII as a result of a breach of Section 6.10, 6.11 or 6.15 shall, in each case, only require an agreement among the Borrower and the Majority Lenders under the Revolving Facility. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lead Arranger, Syndication Agent, Co‑Documentation Agent or Lender, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term B Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term B Loans of a particular Class (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term B Loans of such Class in effect immediately prior to such refinancingrefinancing (for avoidance of doubt any such less favorable terms shall apply only to the Refinanced Term Loans and not to the Revolving Facility Loans).
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Additional Term Loan Commitments or New Additional Revolving Facility Commitments on substantially the same basis as the Term B Loans or Revolving Facility Loans, as applicable applicable.
(g) For the avoidance of doubt and notwithstanding provisions to the contrary in this Section 9.08 or elsewhere in this Agreement, this Agreement may be amended (or amended and restated) with the written consent of the Loan Parties and the Administrative Agent for the purpose of including one or more Incremental Loan Facilities contemplated and on the terms and conditions in Section 2.20, by (i) increasing the aggregate amount of Commitments under any of the respective Facilities and (ii) cure any ambiguity, omission, mistake, defect adding one or inconsistency, more additional borrowing tranches hereunder and to provide for the extent such cure could not reasonably be expected to have a material adverse effect on ratable sharing of the Lendersbenefits of this Agreement and the other Loan Documents with the other commitments and Obligations contemplated herein and therein.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender Collateral Agent in exercising any power or right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Collateral Agent hereunder and of the Collateral Agent, the Issuing Bank Bank, the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision provisions of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Borrower or any other Loan Party Grantor in any case shall entitle such Person Grantor or any other Grantor to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Collateral Agent and the Required Lenders and (y) Grantor or Grantors with respect to which such waiver, amendment or modification is to apply, subject to any consent required in accordance with Section 9.02 of the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shallCredit Agreement.
(ic) decrease Notwithstanding paragraph (b) above, the Collateral Agent shall not amend the third or forgive the principal amount of, or extend the final maturity of, or decrease the rate fourth paragraphs of interest on, any Loan or any L/C Disbursement, Section
6.01 without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause GWI, which consent (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Partyamendments as to form, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting but not as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(csubstance) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing unreasonably withheld. The Collateral Agent acknowledges and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity agrees that GWI is a third party beneficiary of the Term Loans third and fourth paragraphs of Section 6.01 with full rights at law and in effect immediately prior equity to such refinancingenforce the same.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Security Agreement (Catalytica Inc)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Fronting Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Fronting Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party Guarantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party Guarantor in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Required Lenders, the Borrower and Holdings, or the Required Lenders applicable Loan Party, as the case may be, and (y) each such waiver or consent shall be effective only in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto specific instance and for the Administrative Agent, as applicable, and consented to by the Required Lendersspecific purpose for which given; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend or shorten the final maturity of, or decrease the rate of interest on, any Loan Loan, any Term Note or any L/C DisbursementReimbursement Obligation, without the prior written consent of each Lender directly affected thereby; provided to whom such Obligation is owing (or which holds the Commitment for such Obligation), or extend, waive or forgive any other payment (other than a mandatory or optional prepayment) required hereunder without the consent of each Lender to whom such Obligation is owing (or which holds the Commitment for such Obligation), (provided, however, that only the consent of the Required Lenders shall be necessary (x) to waive or alter any amendment obligation of the Borrower to pay interest at the Default Rate or (y) to amend any financial covenant definitions in this Agreement shall not constitute a reduction in hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest for purposes of this clause (ion any Loan, any Term Note or any Reimbursement Obligation or to reduce any fee payable hereunder),
, (ii) increase extend any date on which payment of interest on any Loan, any Term Note or any Reimbursement Obligation is due without the prior written consent of each Lender to whom such Obligation is owing (or which holds the Commitment for such Obligation), (iii) increase, decrease, extend or shorten the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender Lender, (it being understood iv) effect any waiver, amendment or modification that waivers by its terms adversely affects the rights in respect of mandatory or modifications of conditions precedent, covenants, Defaults optional prepayments or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is dueCollateral, without the prior written consent of each Lender 65% of the Revolving Lenders or 66 2/3% of the Term Lenders, as the case may be, participating in the adversely affected thereby,
(iv) amend Facility, or modify change the provisions of Section 2.18(b) or (c) relative rights in a manner that would by its terms alter the pro rata sharing respect of payments required thereby, or Collateral without the prior written consent of 65% of the Revolving Lenders or 66 2/3% of the Term Lenders, as the case may be, participating in each Lender adversely affected thereby,
Facility, (v) amend or modify the provisions of Sections 2.8, 2.11, 2.13, or 2.17 without the prior written consent of each Lender directly adversely affected thereby, (vi) amend or modify the provisions of this Section or Section, the definition of the terms “"Required Lenders,” “Majority Lenders” " or any other provision hereof specifying the number or percentage of Lenders required to waiveamend, amend waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby Lender, (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vivii) release all or substantially all the Collateral or release any Subsidiary Loan Party Guarantor from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, Agreement (unless all or substantially all the Equity Interests Capital Stock of such Subsidiary Loan Party Guarantor is sold or otherwise disposed of in a transaction permitted by this AgreementAgreement or as provided in Section 9.17), without the prior written consent of each LenderLender adversely affected thereby or (viii) increase the principal amount of any facility or add any additional facility without the consent of all of the Lenders; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Fronting Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Fronting Bank acting as such at the effective date of such agreement, as applicablethe case may be. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 9.8 and any consent by any Lender pursuant to this Section 9.08 9.8 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Volume Services America Holdings Inc)
Waivers; Amendment. (a) No failure or delay of the Administrative AgentAgents, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Collateral Agent and consented to by the Required Lenders; provided, however, that no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any Revolving L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),, or otherwise;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or Revolving L/C Participation Fees or other fees of payable to any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of in the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which any scheduled amortization payment in respect of any Term Loan or payment of interest on any Loan or any Loan, Revolving L/C Disbursement or any Fees is due or reduce the amount of any scheduled amortization payment due with respect to any Term Loan on the date due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) extend the stated expiration date of any Revolving Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby;
(vi) amend or modify the provisions of this Section, Section 2.22(b) or Section 2.22(c) or the definition of the terms term “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, ; additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vivii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests value of such Subsidiary Loan Party is sold or otherwise disposed the Guarantees of in a transaction permitted by this Agreement, the Guarantors without the prior written consent of each LenderLender and Issuing Bank; and
(viii) amend, modify or waive this Agreement or any Security Document so as to alter the ratable treatment of Obligations arising under the Loan Documents and Obligations arising under Secured Swap Agreements or the definition of “Specified Swap Counterparty,” “Swap Agreement,” “Secured Swap Agreements,” “Obligations,” or “Secured Obligations” (as defined in any applicable Security Document) in each case in a manner adverse to any Specified Swap Counterparty with Obligations then outstanding without the written consent of any such Specified Swap Counterparty, provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent or the an Issuing Bank hereunder or under the other Loan Documents without the prior written consent of the such Administrative Agent, Collateral Agent or the Issuing Bank acting as such at the effective date of such agreementBank, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent and/or Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement pursuant to Section 2.20 and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company Borrower and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement “B” term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (ai) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (bii) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (ciii) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (div) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, (i) technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Incremental Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable terms and conditions provided for in Section 2.20 and (ii) any Loan Document may be amended, modified, supplemented or waived with the written consent of the Administrative Agent and the Borrower without the need to obtain the consent of any Lender if such amendment, modification, supplement or waiver is executed and delivered in order to cure any an ambiguity, omission, mistakemistake or defect in such Loan Document; provided that in connection with this clause (ii), defect in no event will the Administrative Agent be required to substitute its judgment for the judgment of the Lenders or inconsistencythe Required Lenders, to and the extent Administrative Agent may in all circumstances seek the approval of the Required Lenders, the affected Lenders or all Lenders in connection with any such cure could not reasonably be expected to have a material adverse effect on the Lendersamendment, modification, supplement or waiver.
Appears in 1 contract
Samples: Credit Agreement (SemGroup Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank or any Lender Party in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce any such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders Lender Parties hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Loan Parties and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, Collateral Agent (as applicable, ) and consented to by the Required LendersLenders and otherwise in accordance with the Intercreditor Agreement; provided, however, provided that no such agreement shall:
(i) subject to Section 2.13 and Section 2.14, decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest (other than with respect to default interest) on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the any Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase or extension of the Commitments of any LenderLender or the extension or waiver of the payment of principal),;
(iii) extend or waive any Term date for payment of principal of any Loan Installment Date or reduce the amount due on any Term Loan Installment Date such date or extend any date on which payment of interest on any Loan or any Loan, L/C Disbursement or any Fees Fee is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,;
(v) amend or modify the provisions of this Section or 9.08, the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vi) extend the stated expiration date of any Letter of Credit beyond the Maturity Date without the prior written consent of each Lender directly affected thereby;
(vii) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee without the written consent of each Lender (it being understood that no such consent shall be required in connection with the specific Collateral released under a Collateral Agreement, unlessPermitted Project Disposition);
(viii) change the order of priority of payments set forth in the provisions of the Intercreditor Agreement relating to application of proceeds, in any case, without the prior written consent of each Lender adversely affected thereby;
(ix) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of any other Class without the prior consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each adversely affected Class;
(x) amendments which only affect a particular Class shall only require the approval of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of such Class; or
(xi) subordinate the Obligations hereunder, or the Liens granted hereunder or under the other Loan Documents, to any other Indebtedness or Lien, as the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, may be without the prior written consent of each Lender; provided further provided, further, that no such agreement shall (i) amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent, the Collateral Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable or (ii) amend, modify or waive any provision of Section 8.05 or Section 9.05 that affects the Collateral Agent or the Depositary Agent without the written consent of the Collateral Agent or the Depositary Agent, as applicable; and provided, further, that, notwithstanding any provision of this Section 9.08 to the contrary, any amendment of the definitions of “Gateway Expansion II Date Certain” and “LeConte Date Certain” shall take effect when approved in writing by the Required Lenders. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Notwithstanding the other provisions of this Section 9.08, the applicable Loan Parties and the Administrative Agent and/or the Collateral Agent may (but shall have no obligation to) amend or supplement the Loan Documents without the consent of any other Lender Party (i) to cure any ambiguity, defect or inconsistency, (ii) to make any change that would provide any additional rights or benefits to the Lender Parties, or (iii) to make, complete or confirm any grant of Collateral or make equity contributions, in either case, permitted or required by this Agreement or any of the Loan Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the Security Documents.
(d) Without the consent of any Lenderother Lender Party, the applicable Loan Parties and the Administrative Agent and/or the Collateral Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law Requirements of Law to give effect to, to or protect any security interest for the benefit of the Secured Parties, Parties in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent Requirements of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required LendersLaw.
(e) In additionNotwithstanding anything to the contrary contained herein, notwithstanding if at any time any change in GAAP would affect any computation, basket or defined term set forth in any Loan Document, and the foregoingBorrower shall at such time or thereafter so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend the relevant provisions of the Loan Documents to preserve the original intent thereof in light of such change in GAAP; provided that, until so amended, such computation, basket or defined term shall continue to be computed in conformity with GAAP but without giving effect to such identified changes to GAAP. Any amendment pursuant to this Agreement may be amended with clause (e) shall not require the written consent of any Secured Party other than the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative each Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Holdings, the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any Holdings, the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21 or 2.23, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that except as expressly set forth in Section 2.21 or 2.23, no such agreement shall:
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby, except as provided in Section 2.05(c); provided that any amendment to the financial covenant “Borrowing Base,” “Excess Availability” and related definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),;
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such each Lender directly affected thereby (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),;
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,;
(iv) amend change the definition of the term “Borrowing Base” or modify any component definition thereof if as a result thereof the provisions amounts available to be borrowed by the Borrower would be increased (provided that the foregoing shall not limit the discretion of Section 2.18(b) the Administrative Agent to change, establish or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, eliminate any Reserves without the prior written consent of any Lenders), in each Lender adversely affected thereby,case without the prior written consent of the Super Majority Lenders;
(v) amend or modify the provisions of this Section 10.08 or the definition of the terms terms, “Required Lenders,” “Super Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, that with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders and Super Majority Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or;
(vi) release all or substantially all the Collateral or release any Subsidiary of Holdings, the Borrower or all or substantially all of the other Loan Party Parties from its Guarantee their respective Guarantees under a Collateral Agreementthe applicable Security Document, unless, in the case of a Subsidiary Loan Partyeach case, all any assets or substantially all the Equity Interests of such Subsidiary Loan Party is are sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender, except in connection with a “credit bid” undertaken by the Administrative Agent at the direction of the Required Lenders pursuant to Section 363(k), Section 1129(b)(2)(A)(ii) or otherwise under the Bankruptcy Code or other sale or disposition of assets in connection with an enforcement action with respect to the Collateral permitted pursuant to the Loan Documents (in which case only the consent of the Required Lenders will be needed for such release); provided further or
(vii) change the order of application of proceeds of Collateral set forth in Section 2.18(b) or modify the ratable sharing of payments required thereby or required by Section 2.18(c) without the prior written consent of each Lender directly adversely affected thereby; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank Bank, as applicable, acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 10.08 and any consent by any Lender pursuant to this Section 9.08 10.08 shall bind any assignee of such Lender.
(c) Without the consent of any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoingforegoing (but without limiting the rights of the Lenders and the Agents under the provisos to the preceding clause (b)), this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers Borrower (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof thereof, and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders or the Super Majority Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers Borrower and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans.
(f) Notwithstanding anything to the contrary herein, as applicable no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (1) the Commitment of such Lender may not be increased or extended without the consent of such Lender, (2) the date on which payment of interest on any Loan or any L/C Disbursement or any fees is due may not be extended without the prior written consent of such Lender, to the extent such Lender is adversely affected thereby, and (ii3) this Section 10.08 may not be amended or modified without the prior written consent of such Lender to the extent such Lender is adversely affected thereby.
(g) The Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement to cure any ambiguity, omission, mistake, defect or inconsistency, to so long as such amendment, modification or supplement does not adversely affect the extent such cure could not reasonably be expected to have a material adverse effect on the Lendersrights of any Lender.
Appears in 1 contract
Samples: Credit Agreement (Verso Corp)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings, any Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on Holdings, any Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect to a New Term Loan Amendment, neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) as provided in Section 2.21, (y) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders Lenders, and (yz) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative AgentAgent (or, as applicablein the case of any Security Documents, the Collateral Agent if so provided therein) and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C - BA Disbursement, or extend the stated expiration of any Letter of Credit or Bankers’ Acceptance beyond the Revolving Facility Maturity Date, without the prior written consent of each Lender directly affected thereby; , except as provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (iSection 2.05(c),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C C-BA Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C - BA Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) 5.02 of the Collateral Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms term “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of Holdings, the Company or all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender,
(vii) increase any of the percentages set forth in the definition of the Borrowing Base without the consent of all of the Lenders; provided further or
(viii) increase the Incremental Revolving Facility Commitment above $100 million or add any other Indebtedness under the Facility without the prior written consent of each Lender; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Sole Lead Arranger or any LenderLender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrowers (ai) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (bii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Incremental Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Revolving Credit Agreement (Covalence Specialty Adhesives LLC)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Agent or any Lender in exercising any right or power hereunder or under any Second Lien Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Agent and the Lenders hereunder and under the other Second Lien Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No Subject to the Intercreditor Agreement, no waiver of any provision of this Agreement or any other Second Lien Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 with respect Subject to a New Term Loan Amendmentthe Intercreditor Agreement, neither this Agreement nor any other Second Lien Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Second Lien Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C DisbursementLoan, without the prior written consent of each Lender directly affected thereby; provided provided, that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees Administrative Agent Fee is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms term “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any of the Borrower or any Subsidiary Loan Party from its Guarantee guarantee under a the Second Lien Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of the Syndication Agent or any Joint Lead Arranger or Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Second Lien Loan Document) enter into any amendment, modification or waiver of any Second Lien Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Second Lien Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Hughes Communications, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative any Agent, the any Lender or any Issuing Bank or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the Issuing Bank Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Borrower the Borrowers or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) belowSection 9.08(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any a Borrower or any other Loan Party in any case shall entitle such Person the Borrowers to any other or further notice or demand in similar or other circumstances.
(b) Except as provided . Notwithstanding anything to the contrary contained herein or in Section 2.20 with respect to a New Term Loan Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant the authority to an agreement enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or agreements in writing entered into by each party thereto and the Administrative Agent, as applicableany of them shall be vested exclusively in, and consented to by all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Required LendersAgents in accordance with Sections 7.02 and 7.03 for the benefit of all the Secured Parties; provided, however, that the foregoing shall not prohibit (i) the Agent from exercising on their own behalf the rights and remedies that inure to its benefit (solely in its capacity as an Agent) hereunder and under the other Loan Documents, (ii) any Issuing Bank from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank) hereunder and under the other Loan Documents, (iii) any Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender) hereunder and under the other Loan Documents, (iv) any Lender from exercising setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.17), or (v) subject to Section 8.11, any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Insolvency Law.
(b) Any amendment or waiver of any provision of this Agreement or any other Loan Document (other than the Fee Letter or any Letter of Credit Document), and any consent to any departure by a Borrower or any other Loan Party therefrom, shall be effective if the same shall be in writing and signed by the Required Lenders and the Borrowers (or by the Administrative Agent (with the prior written consent of the Required Lenders) and the Borrowers), provided that such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided further that (x) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing signed by the Administrative Agent and the U.S. Borrower to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five (5) Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five (5) Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment, and (y) no such agreement amendment, waiver or consent shall:
(i) decrease extend the Maturity Date of or forgive increase the stated amount of any Commitment of any Lender or reinstate any Commitment of any Lender terminated pursuant to the terms hereof without the written consent of such Lender;
(ii) postpone any date fixed by this Agreement for any scheduled payment (but not any prepayment) of principal, interest or fees due to any Lender hereunder without the written consent of such Lender;
(iii) reduce the principal amount of, or extend the final maturity of, or decrease the rate of interest specified herein on, any Loan or any L/C Disbursement, Disbursement or any interest or Fees payable hereunder without the prior written consent of each Lender directly affected thereby; provided thereby (it being understood and agreed that any amendment to change in the financial covenant definition of “Leverage Ratio”, or in the component definitions in this Agreement thereof, shall not constitute a reduction in the of rate of interest for purposes of this clause or any interest or Fees payable hereunder); provided, however, that (i),
(iiA) increase or extend only the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments U.S. Required Revolving Lenders shall not constitute an increase be required to waive any obligation of the Commitments U.S. Borrower to pay default interest pursuant to Section 2.07 with respect to the U.S. Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith (B) only the consent of any Lender),
(iii) extend or the Canadian Required Revolving Lenders shall be required to waive any obligation of either Canadian Borrower to pay default interest pursuant to Section 2.07 with respect to the Canadian Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith, (C) only the consent of the Australian Required Revolving Lenders shall be required to waive any obligation of the Australian Borrower to pay default interest pursuant to Section 2.07 with respect to the Australian Revolving Credit Facility, including with respect to any amount payable thereunder or in connection therewith, and (D) only the consent of the Required U.S. Term Lenders shall be required to waive any obligation of the U.S. Borrower to pay default interest pursuant to Section 2.07 with respect to the U.S. Term Loan Installment Date Facility, including with respect to any amount payable thereunder or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,in connection therewith;
(iv) amend or modify the provisions of change Section 2.18(b) or (c) 2.16 in a manner that would by its terms alter the pro rata sharing of payments required thereby, thereby without the prior written consent of each Lender adversely affected thereby,thereby or change the order of application, as among the Facilities, of any prepayment or other amount specified in Section 7.05 or in the CAM Exchange Agreement from the order set forth in such Section or in such agreement in a manner that adversely affects the Lenders under any Facility without the prior written consent of (A) if such Facility is the U.S. Term Loan Facility, the Required U.S. Term Lenders, (B) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders, (C) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Lenders, (D) if such Facility is the Australian Revolving Credit Facility, the Required Australian Lenders and (E) if NAB Lender is adversely affected by such change, NAB Lender;
(v) amend or modify the provisions change any provision of this Section Section, or the percentage specified in definition of the terms “Required Lenders,” “Majority Required U.S. Revolving Lenders,” “Required Canadian Lenders,” “Required Australian Lenders,” “Required Revolving Lenders,” or “Required U.S. Term Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waiveamend, amend waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely directly affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), orthereby;
(vi) except as expressly permitted hereunder or under any Security Document, (A) release the guaranty provided by the U.S. Borrower pursuant to the U.S. Guarantee Agreement without the written consent of each Canadian Lender, each Australian Lender and NAB Lender, or (B) release all or substantially all of the Collateral value of the guaranties provided by the other Guarantors hereunder or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all of the Equity Interests Collateral without the written consent of such Subsidiary Loan Party is sold or otherwise disposed of each Lender and NAB Lender;
(vii) change Section 9.04 in a transaction permitted by this Agreement, manner that imposes additional restrictions on the ability of any Lender under any Facility to assign any of its rights or obligations hereunder without the prior written consent of (A) if such Facility is the U.S. Term Loan Facility, the Required U.S. Term Lenders, (B) if such Facility is the U.S. Revolving Credit Facility, the Required U.S. Revolving Lenders, (C) if such Facility is the Canadian Revolving Credit Facility, the Required Canadian Lenders and (D) if such Facility is the Australian Revolving Credit Facility, the Required Australian Lenders;
(viii) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding one Class of Loans differently from the rights in respect of payments due to Lenders holding another Class of Loans without the prior written consent of the Required U.S. Revolving Lenders (if the U.S. Revolving Lenders are the adversely affected Class), Required U.S. Term Lenders (if the U.S. Term Lenders are the adversely affected Class), Required Canadian Lenders (if the Canadian Lenders are the adversely affected Class) or Required Australian Lenders (if the Australian Lenders are the adversely affected Class);
(ix) amend or modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(g) without the written consent of such SPC; or
(x) amend or modify any Security Document in a manner that results in the NAB Bilateral Obligations secured by such Security Instrument no longer being secured thereby on an equal and ratable basis with the principal of the Loans, or amend or otherwise change the definition of “Obligations” in the Guarantee Agreements, in each case if NAB Lender is adversely affected by such amendment, modification or change, without the written consent of NAB Lender; provided further provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Agent, an Issuing Bank or a Swing Line Lender hereunder or under any other Loan Document without the prior written consent of the Administrative Agent or the such Agent, Issuing Bank acting as such at or Swing Line Lender, respectively. Notwithstanding anything to the effective date of such agreementcontrary herein, as applicable. Each no Defaulting Lender shall be bound by have any waiverright to approve or disapprove any amendment, amendment waiver or modification authorized by this Section 9.08 consent hereunder or under any other Loan Document (and any amendment, waiver or consent which by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without its terms requires the consent of all Lenders, all Lenders or a majority in interest of Lenders under any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, Facility or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement each affected Lender may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made effected with the consent of the Borrowers and the Administrative Agent applicable Lenders other than Defaulting Lender); provided that any such amendment, waiver or consent referred to the extent necessary to in clause (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loansb)(i), as applicable and (ii) cure or (iii) above that, but for this sentence, would require the prior written consent of such Defaulting Lender, will continue to require the consent of such Defaulting Lender; and provided further that any ambiguitysuch amendment, omissionwaiver or consent requiring the consent of all Lenders, mistakesuch Lender or each affected Lender that by its terms affects any Defaulting Lender more adversely than any other Lender whose consent is so required shall require the consent of such Defaulting Lender. No Lender or any Affiliate of a Lender shall have any voting rights under any Loan Document as a result of the existence of obligations owed to it under Hedging Agreements, defect Banking Services Obligations or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the LendersNAB Bilateral Obligations.
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Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Issuing Bank Senior Collateral Agent or any Lender in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Bank Senior Collateral Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise provided in Section 2.20 with respect to a New Term Loan Amendmentherein, neither this Agreement nor any other Loan Document nor any provision hereof or thereof hereof, may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
shall (i) decrease or forgive the principal amount of, or extend the final maturity ofof or date for the payment of any interest on any Loan, extend the date for payment of any fees or waive or excuse any such payment or any part thereof, decrease the rate of interest on, on any Loan or reduce the amount of any L/C Disbursementfee payable hereunder, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
, (ivii) amend or modify the pro rata requirements of Section 2.17, the sharing provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby2.18, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.04(j) or the definition provisions of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.this
Appears in 1 contract
Samples: Term Loan Credit Agreement (Pyxus International, Inc.)
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any the Borrower or any other Loan Party in any case shall entitle such Person person to any other or further notice or demand in similar or other circumstances.
(b) Except Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 7.01 or the terms of other Loan Documents for the benefit of all the Lenders, the Issuing Banks and other Secured Parties; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as provided Administrative Agent) hereunder and under the other Loan Documents, (b) any Issuing Bank from exercising the rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank, as the case may be) hereunder and under the other Loan Documents, (c) any Secured Party from exercising setoff rights in accordance with Section 2.20 9.06, or (d) any Secured Party from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Bankruptcy Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 7.01 or the terms of other Loan Documents and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso any Lender may, with respect the consent of the Required Lenders, enforce any rights and remedies available to a New Term Loan Amendment, neither it and as authorized by the Required Lenders.
(c) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (w) as provided in Section 2.14, 2.21, 2.22 or 2.23, (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) in a manner that would by its terms alter the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or
(vi) release all or substantially all the Collateral or release any Subsidiary Loan Party from its Guarantee under a Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Bank hereunder without the prior written consent of the Administrative Agent or the Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any Lender, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, and the Borrowers (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.in
Appears in 1 contract
Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the any Issuing Bank or any Lender in exercising any right or power hereunder or under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any the Borrower or any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any the Borrower or any other Loan Party in any case shall entitle such Person to any other or further notice or demand in similar or other circumstances.
(b) Except as provided in Section 2.20 2.21 with respect to an Incremental Facility Amendment and as provided in Section 2.14(b) with respect to a New Term Loan AmendmentBenchmark Transition Event, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers Borrower and the Required Lenders and (y) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by each party thereto and the Administrative Agent, as applicable, Agent and consented to by the Required Lenders; provided, however, that no such agreement shall
(i) decrease or forgive the principal amount of, or extend the final maturity of, or decrease the rate of interest on, any Loan or any L/C Disbursement, or extend the stated expiration of any Letter of Credit beyond the Maturity Date, without the prior written consent of each Lender directly affected thereby; provided that any amendment to the financial covenant definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (i),
(ii) increase or extend the Commitment of any Lender or decrease the Commitment Fees or L/C Participation Fees or other fees of any Lender without the prior written consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the aggregate Commitments shall not constitute an increase of the Commitments Commitment of any Lender),
(iii) extend or waive any Term Loan Installment Date or reduce the amount due on any Term Loan Installment Date or extend any date on which payment of interest on any Loan or any L/C Disbursement or any Fees is due, without the prior written consent of each Lender adversely affected thereby,
(iv) amend or modify the provisions of Section 2.18(b) or (c) of this Agreement or Section 5.02 of the Collateral Agreement in a manner that would by its terms alter the waterfall or the pro rata sharing of payments required thereby, without the prior written consent of each Lender adversely affected thereby,
(v) amend or modify the provisions of this Section 9.08 or the definition of the terms “Required Lenders,” “Majority Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the prior written consent of each Lender adversely affected thereby (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the Loans and Commitments are included on the Closing Date), or,
(vi) release all or substantially all the Collateral or release any all or substantially all of the Subsidiary Loan Party Parties from its Guarantee their respective Guarantees under a the Collateral Agreement, unless, in the case of a Subsidiary Loan Party, all or substantially all the Equity Interests of such Subsidiary Loan Party is sold or otherwise disposed of in a transaction permitted by this Agreement, without the prior written consent of each Lender; provided further provided, however, that no consent of any Lender shall be required for a release of Collateral pursuant to Section 5.12,
(i) effect any waiver, amendment or modification of any Loan Document that would alter the relative priorities of the rights of the Secured Parties in the Collateral,
(ii) amend or modify the definition of “Issuing Bank Sublimit” without the prior written consent of each Issuing Bank, and
(iii) effect any waiver, amendment or modification of any Loan Document that would (x) subordinate the Liens on the Collateral securing the Obligations or (y) subordinate all or any portion of the Obligations in right of payment; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the an Issuing Bank hereunder without the prior written consent of the Administrative Agent or the such Issuing Bank acting as such at the effective date of such agreement, as applicable. Each Lender shall be bound by any waiver, amendment or modification authorized by this Section 9.08 and any consent by any Lender pursuant to this Section 9.08 shall bind any assignee of such Lender.
(c) Without the consent of any LenderJoint Lead Arranger or Lender or Issuing Bank, the Loan Parties and the Administrative Agent may (in their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law.
(d) Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Agent and the Borrowers Borrower (a) to add one or more additional credit facilities (in addition to New Term Loans as provided in Section 2.20) to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Facility Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(e) In addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans (“Refinanced Term Loans”) with a replacement term loan tranche hereunder which shall be Loans hereunder (“Replacement Term Loans”); provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher than the Applicable Margin for such Refinanced Term Loans, (c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
(f) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrowers and the Administrative Agent to the extent necessary to (i) integrate any New Term Commitments or New Revolving Facility Commitments on substantially the same basis as the Term Loans or Revolving Facility Loans, as applicable and (ii) cure any ambiguity, omission, mistake, defect or inconsistency, to the extent such cure could not reasonably be expected to have a material adverse effect on the Lenders.
Appears in 1 contract
Samples: Revolving Credit Agreement (Nuance Communications, Inc.)