Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit. (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a). (c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 4 contracts
Samples: Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotels & Resorts, Inc), Credit Agreement (Strategic Hotel Capital Inc)
Waivers, Amendments, Etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and each Obligor party thereto and by the Required Lenders; provided, however, that no such amendment, modification or waiver which would:
(a) Neither this Agreement nor modify any other Loan Document nor requirement hereunder that any terms hereof particular action be taken by all the Lenders or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and Required Lenders shall be effective unless consented to by each Lender;
(b) modify this Section 11.1, or clause (a) of Section 11.10, change the definition of "Required Lenders", increase any Commitment Amount or the Percentage of any Lender, reduce, or extend the due date for, any fees described in Section 3.3 (other than any fee referred to in Section 3.3.2), release any Guarantor from its obligations under any Guaranty, or release all or substantially all of the collateral security (except in each case as otherwise specifically provided that no in this Agreement, any such changeGuaranty, waiver, discharge a Security Agreement or termination shall, a Pledge Agreement) or extend any Commitment Termination Date shall be made without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly adversely affected thereby;
(c) extend the due date for, or reduce the amount of, (i) extend the final any scheduled maturity repayment or prepayment of principal of or interest on any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest on any Loan) or fees for purposes (ii) any repayment of this clause any Reimbursement Obligation (ior reduce the amount of or rate of interest on any Reimbursement Obligation) shall be made without the consent of the holder of the Note evidencing such Loan or, in the case of a Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of any Agent, the Swing Line Lender, the Issuer or the Arranger (in its capacity as Agent, the Swing Line Lender, the Issuer or the Arranger), so long unless consented to by such Agent, the Swing Line Lender, the Issuer or the Arranger, as the primary purpose case may be; or
(e) have the effect (either immediately or at some later time) of enabling the Borrower to satisfy a condition precedent to the making of a Revolving Loan, the Swing Line Loan or the issuance of a Letter of Credit without the consent of Lenders holding at least 51% of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), Revolving Loan Commitments; or
(iif) amend, modify or waive the provisions of clause (a)(i) of Section 3.1.1 or clause (b) of Section 3.1.2 or effect any provision amendment, modification or waiver that by its terms adversely affects the Lenders participating in any Tranche differently from those of this Section 10.1Lenders participating in other Tranches, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuerholders of the Notes evidencing greater than 50% of the aggregate amount of Loans outstanding under each Tranche affected by such modification, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) Ifor, in connection with any proposed changethe case of a modification affecting the Revolving Loan Commitment Amount, waiver, discharge or termination to any the Lenders holding greater than 50% of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Revolving Loan Commitments. No failure or delay on the part of the Administrative any Agent, the Issuer or Issuer, any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative any Agent, the Issuer or Issuer, any Lender or the holder of any Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 4 contracts
Samples: Credit Agreement (Dri I Inc), Credit Agreement (Dri I Inc), Credit Agreement (Dri I Inc)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof or thereof (other than Letters of Credit, the Fee Letter (which documents may be changedamended or otherwise modified in accordance with the terms thereof)) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders, Lenders or as otherwise provided under Section 1.4; provided that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify or waive the provisions of Section 4.8 requiring pro rata treatment of the Lenders or modify this Section 12.1 without the consent of each Lender all Lenders (other than except such amendments as may be required for the purpose (but solely for the purpose) of effecting an increase of a Defaulting LenderCommitment Amount or the inclusion of a new commitment pursuant to clause (g) with Obligations being directly affected thereby, below);
(ib) extend increase the final scheduled maturity aggregate amount of any Revolving Loan Credit Extensions required to be made by a Lender pursuant to a Commitment (it being understood that waivers or Note modifications (x) of conditions precedent, covenants, Defaults or extend Events of Default or (y) of a mandatory reduction in the Stated Expiry Date Commitment Amount relating to such Commitment shall not constitute an increase of any Letter the aggregate amount of Credit beyond the Maturity DateExtensions that may be required to be made by such Lender pursuant to such Commitment), extend any final Commitment Termination Date or reduce the rate or extend the time of payment of interest (except any fees described in connection with a waiver of applicability of Article III payable to any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof Lender (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in the fees payable under Article III), in each case without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender's Loan, or, except for the waiver of any applicable post default increase in interest rates or fees, reduce the principal amount of, rate of interest or fees on any Loan or Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in the rate of interest or fees for the purposes of this clause (i), c) so long as the primary principal purpose of the respective amendments such amendment or modifications to the financial definitions modification was not to reduce the rate of interest or fees)), or extend the date on which interest or fees are payable hereunderin respect of such Loan or Reimbursement Obligation, in each case, without the consent of the Lender which has made such Loan or, in the case of a Reimbursement Obligation, the respective Issuer owed, and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of "Required Lenders" (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 extensions of Term Loans and Revolving Loan Commitments are included on the Amendment Effective Date) or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, (i) permit the assignment by either Borrower of its Obligations under the Loan Documents, (ii) release Holdings from its Obligations under the Holdings Guaranty, the U.S. Borrower from its obligations under the U.S. Borrower Guaranty or any Subsidiary Guarantor from its Obligations under the Subsidiary Guaranty (other than in connection with a Disposition of all or substantially all of the Capital Stock of such Subsidiary Guarantor in a transaction permitted by Section 7.2.11) or (iii) release all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; provided that the Required Lenders may at any time consent to the release of any Subsidiary Guarantor that (A) accounted for no more than 15% of consolidated revenues of Holdings and its Subsidiaries for the four consecutive Fiscal Quarters of Holdings ending on September 30, 2004 or if more recent financial information is (or is required to be) available, the last day of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agents and (B) has assets which represent no more than 15% of the consolidated assets of Holdings and its Subsidiaries as of September 30, 2004, or if more recent financial information is (or is required to be) available, the last day of the last Fiscal Quarter of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agents;
(f) amend, modify or waive any provision clause (b) of this Section 10.1, (iii) reduce the percentage specified 3.1.1 in the definition of Required Lenders, (iv) consent a manner adverse to the assignment or transfer by Borrower holders of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments unless such amendment, modification or waiver shall have been consented to by the holders of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of at least a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase majority of the Revolving Loan Commitment Commitments;
(g) amend, modify or waive the provisions of clause (a)(i), (c), (d), (e), (f), (g), (h) or (i) of Section 3.1.1 or clause (b) of Section 3.1.2, unless such amendment, modification or waiver shall have been consented to by the holders of at least a majority of the aggregate amount of Loans outstanding under the Tranche or Tranches adversely affected by such modification (it being agreed that, in the event consented to by the Required Lenders, any Lender, and that an increase in a Commitment Amount or the available portion inclusion of any Revolving Loan Commitment of any Lender another commitment to extend credit under this Agreement shall not be deemed for purposes of this clause (g) to constitute an increase a modification that would adversely affect a Tranche);
(h) change any of the Revolving Loan Commitment terms of such Lender), or (B) Section 2.3.2 without the consent of the IssuerSwing Line Lender affected thereby; or
(i) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Agent (in its capacity as an Agent) or the Issuer, unless consented to by such Lender) pursuant to Agent or the second proviso to Section 10.1(a).
(c) Issuer, as the case may be. No failure or delay on the part of the Administrative any Agent, the Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative any Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 12.1, powers the Administrative Agents, in coordination with the Syndication Agent, shall have primary responsibility, together with the Borrowers, in the negotiation, preparation and remedies herein documentation relating to any amendment, modification or in waiver un- der this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
Appears in 3 contracts
Samples: Credit Agreement (Associated Materials Inc), Credit Agreement (AMH Holdings, Inc.), Credit Agreement (AMH Holdings, Inc.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Rate Protection Agreements or thereof Letters of Credit, which shall be modified only in accordance with their respective terms) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided that, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each affected Lender;
(b) increase the aggregate amount of any Loans required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Loans made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness), the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest, principal or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2 and such waiver shall not constitute a reduction of the rate of interest hereunder);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or any Subsidiary Guarantor from its obligations under the Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(aAdministrative Agent), the consent of Collateral Agent (in its capacity as the Required Lenders is obtained but Collateral Agent) any Issuer (in its capacity as Issuer), or the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long Swing Line Lender (in its capacity as all non-consenting Lenders whose individual consent is required are treated as described below, Swing Line Lender) unless consented to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Agent, such Issuer,or such Swing Line Lender) pursuant to , as the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding the foregoing, powers this Agreement may be amended (or amended and remedies herein restated) with the written consent of the Required Lenders, and the Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Obligations and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. Further, notwithstanding anything to the contrary contained in Section 10.1, if within sixty days following the Restatement Effective Date, the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial 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 such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly provided are cumulative and if the same is not exclusive objected to in writing by the Required Lenders within five Business Days following receipt of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise havenotice thereof.
Appears in 3 contracts
Samples: Credit Agreement (Hanesbrands Inc.), Credit Agreement (Hanesbrands Inc.), Credit Agreement (Hanesbrands Inc.)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders, ; provided that no such changeamendment, waivermodification or waiver which would:
(a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(b) modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
(c) increase the Commitment(s) of any Lender, discharge reduce any fees described in Section 2.4 payable to any Lender or extend the Termination Date with respect to any Lender shall be made without the consent of such Lender;
(d) extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on any Advance or fees (or reduce the principal amount of or rate of interest on any Advance) applicable to any Lender shall be made without the consent of such Lender;
(e) extend the termination shall, date of a Letter of Credit beyond the latest Termination Date without the consent of each Lender whose Revolving Credit Commitment expires on such Termination Date;.
(other than a Defaulting Lenderf) with Obligations being directly affected therebyaffect adversely the interests, (i) extend the final scheduled maturity of any Revolving Loan rights or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose obligations of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified Administrative Agent in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, capacity as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the such shall be made without consent of the Required Lenders required aboveAdministrative Agent;
(g) affect adversely the interests, no rights or obligations of the Swing Line Bank in its capacity as such changeshall be made without consent of the Swing Line Bank; or
(h) affect adversely the interests, waiver, discharge rights or termination shall (A) increase the Revolving Loan Commitments obligations of any Lender over the amount thereof then Issuing Bank in effect its capacity as such shall be made without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Issuing Bank. No failure or delay on the part of the Administrative Agent, the Issuer Agent or any Lender Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer Agent or any Lender Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsIf any Lender Party is a Non-Consenting Lender, powers the Borrower shall be entitled at any time to replace such Lender Party with another financial institution willing to take such assignment and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which reasonably acceptable to the Administrative Agent, the Issuer Swing Line Bank and each Issuing Bank; provided that (i) each such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender Party under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender Party under this Agreement, (ii) such assignment shall not conflict with applicable law and (iii) no Non-Consenting Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section unless and until such Non-Consenting Lender would otherwise haveshall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Non-Consenting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Non-Consenting Lender under this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement, Credit Agreement (Royal Caribbean Cruises LTD)
Waivers, Amendments, Etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and each Obligor party thereto and by the Required Lenders; provided, however, that any such amendment, modification or waiver of the type set forth below shall require the consent of the Person or Persons described below for such amendment, modification or waiver:
(a) Neither this Agreement nor Unless consented to by each Lender, no such amendment, modification or waiver shall be effective if it would modify any other Loan Document nor requirement hereunder that any terms hereof particular action be taken by all the Lenders, all the Lenders with respect to any Tranche of Loans or thereof may be changed, waived, discharged Commitments or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, release Holdco from its obligations under the Holdco Guaranty and Pledge Agreement, release any Subsidiary Guarantor that is a Material Subsidiary from its obligations under the Subsidiary Guaranty (except as otherwise provided that in the Subsidiary Guaranty), if any, or release all or substantially all of the collateral security (except in each case as otherwise specifically provided in this Agreement, any such Subsidiary Guaranty or a Pledge Agreement).
(b) Unless consented to by each Lender adversely affected thereby, no such changeamendment, waivermodification or waiver shall be effective if it would modify this Section 10.1, discharge or termination shallclause (i) of Section 10.10, without change the consent definition of each "Required Lenders", increase any Commitment Amount or the Percentage of any Lender (other than a Defaulting Lenderpursuant to clause (c) with Obligations being directly affected therebyof Section 2.1.2), reduce any fees described in Section 3.3 (iother than the administration fee referred to in Section 3.3.2) or extend the final scheduled maturity of any Revolving Loan Commitment Termination Date.
(c) No such amendment, modification or Note or waiver shall be effective if it would extend the Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon Loan or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest on or fees payable hereunderin respect of any Loan or any Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor), unless such amendment, modification or waiver shall have been consented to by the Lender which has made such Loan or, in the case of a Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such Reimbursement Obligation.
(iid) No such amendment, modification or waiver shall be effective if it would affect adversely the interests, rights or obligations of any Agent, Issuer or Lead Arranger (in its capacity as Agent, Issuer or Lead Arranger), unless such amendment, modification or waiver shall have been consented to by such Agent, Issuer or Lead Arranger, as the case may be.
(e) No such amendment, modification or waiver shall be effective if it would have the effect (either immediately or at some later time) of enabling the Borrower to satisfy a condition precedent to the making of a Revolving Loan or the issuance of a Letter of Credit unless such amendment, modification or waiver shall have been consented to by the holders of at least 51% of the Revolving Loan Commitments.
(f) No such amendment, modification or waiver shall be effective if it would amend, modify or waive the provisions of clause (a)(i) of Section 3.1.1 or clause (b) of Section 3.1.2 or effect any provision amendment, modification or waiver that by its terms adversely affects the rights of this Section 10.1Lenders participating in any Tranche differently from those of Lenders participating in other Tranches, (iii) reduce unless such amendment, modification or waiver shall have been consented to by the percentage specified holders of at least 51% of the aggregate amount of Loans outstanding under the Tranche or Tranches affected by such modification, or, in the definition case of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase modification affecting the Revolving Loan Commitments of any Lender over Commitments, the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase Lenders holding at least 51% of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Commitments. No failure or delay on the part of the Administrative any Agent, the Issuer any Issuer, any Lender or any Lender other Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative any Agent, the any Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 10.1, powers the Syndication Agent, in coordination with the Administrative Agent, shall have primary responsibility, together with the Borrower, in the negotiation, preparation and remedies herein documentation relating to any amendment, modification or in waiver under this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
Appears in 3 contracts
Samples: Credit Agreement (Charles River Laboratories International Inc), Credit Agreement (Charles River Laboratories Inc), Credit Agreement (Charles River Laboratories Holdings Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver which would:
(a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(b) modify this Section 10.1, discharge change the definition of “Required Lenders”, increase the Revolving Commitment Amount, Term Loan Commitment Amount or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity Percentage of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateLender, or reduce the rate or extend the time of payment of interest or any fees described in Article III, change the schedule of repayments of Loans provided for in Section 3.1.2 and 3.1.3, release any Guarantor from its obligations pursuant to the Guarantee and Collateral Agreement (except in connection with a waiver of applicability Permitted Asset Disposition or as otherwise permitted hereby, in which such cases no consent of any post-default increase Lender is required), release all or substantially all of the collateral security (except in interest ratesconnection with a Permitted Asset Disposition or as otherwise permitted hereby, in which such cases no consent of any Lender is required) or fees thereon except as otherwise specifically provided in any Loan Document, permit any payment, prepayment, redemption, conversion to cash, defeasance or acquisition for value, refund, refinance or exchange of any Convertible Notes or Convertible Note Documents except as otherwise permitted by Section 7.2.6(f) hereof without the consent of each Lender, or extend the Revolving Commitment Termination Date or Maturity Date shall be made without the consent of each Lender;
(c) extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on any Loan or any fee payable to a Lender (or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (iion any Loan) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) be made without the consent of the Issuerholder of that Note evidencing such Loan or Lender entitled to such fee;
(d) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.the Agent qua the Agent shall be made without consent of the Agent; or
(be) If, in connection with any proposed change, waiver, discharge modify Section 2.8 or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), 8.4 shall be made without the consent of the Required Lenders is obtained but the consent Letter of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Credit Issuer. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Credit Party in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender or the holder of any Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsIf, powers and remedies herein in connection with any proposed amendment, modification, waiver or in termination (a “Proposed Change”) requiring the consent of a specific Lender, the consent of Required Lenders is obtained, but the consent of the specific Lenders whose consent is required is not obtained (any other Loan Document expressly provided are cumulative and such Lender whose consent is not exclusive of any rightsobtained being referred to as a “Non Consenting Lender”), powers or remedies which the Administrative then, so long as Agent is not a Non Consenting Lender, at Borrowers request Agent, or a Person reasonably acceptable to Agent, shall have the Issuer right with Agent’s consent and in Agent’s sole discretion (but shall have no obligation) to purchase from such Non Consenting Lenders, and such Non Consenting Lenders agree that they shall, upon Agent’s request, sell and assign to Agent or any Lender would otherwise havesuch Person, all of the Revolving Commitments of such Non Consenting Lenders for an amount equal to the principal balance of all Loans held by the Non Consenting Lenders and all accrued interest and Fees with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed Assignment Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Novamed Inc), Credit Agreement (Novamed Inc), Credit Agreement (Novamed Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify Section 4.8 (as it relates to sharing of payments) or this Section 11.1, discharge or termination shallin each case, without the consent of each all Lenders;
(b) increase any Lender’s Percentage of any Commitment Amount, increase the aggregate amount of any Loans to be made by a Lender pursuant to its Commitments, extend the Revolving Loan Commitment Termination Date of Credit Extensions made (other than or participated in) by a Defaulting Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender) with Obligations being directly affected thereby, ;
(ic) extend the final Stated Maturity Date for any Lender’s Loan, or reduce the principal amount of or rate of interest on any Lender’s Loan or extend the date on which scheduled maturity payments of principal, or payments of interest or fees are payable in respect of any Revolving Loan Lender’s Loans, in each case, without the consent of such Lender (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 9.2 and Section 9.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of “Required Lenders” or Note any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit, unless consented to by the Issuer of such Letter of Credit, or extend the Stated Expiry Date of any Letter of Credit beyond to a date which is subsequent to the Maturity Revolving Loan Commitment Termination Date, or reduce unless consented to by the rate or extend the time Issuer of payment such Letter of interest Credit and all Revolving Lenders;
(f) except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions as otherwise expressly provided in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause another Loan Document, release (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of Guarantor from its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary a Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or other than in connection with a Disposition of all or refinancing that is otherwise substantially all of the Capital Securities of such Guarantor in a transaction permitted pursuant by Section 7.2.9 as in effect from time to time or (ii) all or substantially all of the terms of this Agreement; provided further, thatcollateral under the Loan Documents, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect either case without the consent of such Lender all Lenders;
(it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase g) change any of the Revolving Loan Commitment terms of any Lender, and that an increase in the available portion clause (c) of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), Section 2.1.4 or (B) Section 2.3.2 without the consent of the IssuerSwing Line Lender; or
(h) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(aAdministrative Agent), the consent of Syndication Agent (in its capacity as the Required Lenders is obtained but Syndication Agent) or any Issuer (in its capacity as Issuer), unless consented to by the consent of one Administrative Agent, the Syndication Agent or more of such other Lenders whose consent is required is not obtainedIssuer, then as the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Syndication Agent, any Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower or any other Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Syndication Agent, any Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 3 contracts
Samples: Amendment Agreement (Weight Watchers International Inc), Credit Agreement (Weight Watchers International Inc), Credit Agreement (Weight Watchers International Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any other Loan Document nor any terms hereof Agreement, including the closing conditions set forth herein, may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower Agent and the Required Lenders; provided, provided that no such changeamendment, waiver, discharge waiver or termination consent shall: (a) increase the Commitment of any Lender or subject a Lender to any additional obligations, without the written consent of each Lender (other than a Defaulting such Lender) with Obligations being directly affected thereby, (ib) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except of, or interest on, the Notes or any fees or other amounts payable to any Lender hereunder without the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate written consent of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder)such Lender, (iic) amendpostpone any date fixed for any payment of principal of, modify or waive interest on, the Notes or any provision fees or other amounts payable to any Lender hereunder without the written consent of this Section 10.1such Lender, (iiid) reduce change the percentage specified number of Lenders which shall be required for the Lenders or any of them to take any action hereunder, unless in writing and signed by all the definition of Required Lenders, (ive) consent discharge any Borrower from its obligations under the Loan Documents, unless in writing and signed by all the Lenders, (f) amend Section 2.8 or this Section 9.1, unless in writing and signed by all Lenders or (g) except as specifically permitted hereby or thereby, release or impair the security interest in any of the Collateral granted to the assignment or transfer by Borrower of any of its rights and obligations under this AgreementAdministrative Agent, (v) release Guarantor from for the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion benefit of the CollateralSecured Parties, exceptunder the Security Documents or discharge any Guarantor, unless in each casewriting and signed by all the Lenders; provided, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, thatthat no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the consent Lenders required above to take such action, affect the rights or duties of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of Administrative Agent under this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Note. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document Note shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the any Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or approval consent hereunder (and any amendment, waiver or consent which by its terms requires the Administrative Agent, consent of all Lenders or each affected Lender may be effected with the Issuer or any Lender under this Agreement or any consent of the applicable Lenders other Loan Document shallthan Defaulting Lenders), except as that (x) the Commitment of any Defaulting Lender may not be otherwise stated in increased or extended without the consent of such waiver Lender and (y) any waiver, amendment or approval, be applicable modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to subsequent transactions. No waiver or approval hereunder other affected Lenders shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive the consent of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise havesuch Defaulting Lender.
Appears in 3 contracts
Samples: Credit Agreement (Hydrofarm Holdings Group, Inc.), Credit Agreement (Hydrofarm Holdings Group, Inc.), Credit Agreement (Hydrofarm Holdings Group, Inc.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or ------------------------ delay on the part of the Administrative AgentAgents, the Issuer Paying Agent or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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 Agents, privilege the Paying Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.16 or by an Eligible Assignee pursuant to Section 8.03, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative AgentBorrower and the Required Lenders or (ii) in the case of the Guarantee Agreement, pursuant to an agreement or agreements in writing entered into by the Issuer Guarantors and the Paying Agent and consented to by the Required Lenders; provided, however, that no such -------- ------- agreement shall (A) change the principal amount of any Advance, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Sections 2.05 and 2.16), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender or reduce or extend the date for payment of the Facility Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or any other Loan Document shall(C) amend or modify the provisions of this Section 8.01(b) or Section 8.05 or the definition of the term "Required Lenders" without the prior written consent of each Lender; and provided further that no such agreement -------- ------- shall amend, except as may be modify or otherwise stated in such waiver affect the rights or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive duties of any rights, powers or remedies which the Administrative Agents or the Paying Agent hereunder without the prior written consent of the Administrative Agents or the Paying Agent, the Issuer or any Lender would otherwise haverespectively.
Appears in 2 contracts
Samples: 364 Day Credit Agreement (Kroger Co), 364 Day Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer Issuing Banks or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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, privilege the Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.17 or by an assignee pursuant to Section 8.06, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders and either acknowledged by or notified to the Administrative AgentAgent or (ii) in the case of a Letter of Credit, pursuant to an agreement or agreements entered into by the Issuer Borrower and the applicable Issuing Bank; provided, however, that no such agreement shall (A) change the principal amount of any Advance or Letter of Credit Obligation, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Section 2.17), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender (other than as provided in Section 2.17 or 2.19) or reduce or extend the date for payment of the Commitment Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or (C) amend or modify the provisions of this Section 8.01(b) or Section 8.05 or the definition of the term “Required Lenders”, without the prior written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or the Issuing Banks hereunder without the prior written consent of the Administrative Agent or the Issuing Banks, respectively. 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 consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other Loan Document shallthan Defaulting Lenders), except as that (x) the Commitment of any Defaulting Lender may not be otherwise stated in increased or extended without the consent of such waiver Lender and (y) any waiver, amendment or approval, be applicable to subsequent transactions. No waiver modification requiring the consent of all Lenders or approval hereunder each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require any similar or dissimilar waiver or approval thereafter the consent of such Defaulting Lender.
(c) Notwithstanding anything to be granted hereunder. The rights, powers and remedies the contrary contained herein or in any other Loan Document expressly provided are cumulative Document, the authority to enforce rights and not exclusive of any rightsremedies hereunder and under the other Loan Documents against the Borrower shall be vested exclusively in, powers or remedies which 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 Article VI for the benefit of all the Lenders and the Issuing Banks; 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 Administrative Agent) hereunder and under the other Loan Documents, (b) any Issuing Bank from exercising the Issuer or rights and remedies that inure to its benefit (solely in its capacity as Issuing Bank) hereunder and under the other Loan Documents, (c) any Lender would from exercising setoff rights in accordance with Section 8.04 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any debtor relief 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 haveascribed to the Administrative Agent pursuant to Article VI and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Appears in 2 contracts
Samples: Credit Agreement (Kroger Co), Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. (a) Neither No amendment or waiver of any provision of this Agreement nor or any other Credit Document, and no consent to any departure by the Borrower or any other Loan Document nor any terms hereof or thereof may Party therefrom, shall be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto Required Lenders and the Required LendersBorrower or the applicable Loan Party, provided that as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that
(a) no such changeamendment, waiver, discharge waiver or termination consent shall, :
(i) extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 9.2) without the written consent of such Lender whose Commitment is being extended or increased (it being understood and agreed that a waiver of any condition precedent set forth in Article V or a waiver of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other Credit Document for any payment of principal (excluding mandatory prepayments), interest, Repayment Premiums, fees or other amounts due to the Lenders (or any of them) without the written consent of each Lender entitled to receive such payment (it being understood that a waiver of any Default or Event of Default shall not constitute such a postponement);
(iii) reduce the principal of, the rate of interest specified herein on or any Repayment Premium or Exit Fee specified herein on any Loan, or any fees or other amounts payable hereunder or under any other Credit Document without the written consent of each Lender entitled to receive such payment of principal, interest, fees or other amounts (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except such reduction in connection with a waiver of applicability any Default, Event of Default, mandatory prepayment or amendment to any post-default increase in interest ratesfinancial covenant);
(iv) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cashx) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify amend or waive any provision of Section 9.4, or (y) amend or waive any provision providing for the pro rata treatment of the Lenders, in each case without the written consent of each Lender directly affected thereby;
(v) change any provision of this Section 10.1, 10.1(a) or the definition of “Required Lenders” without the written consent of all the Lenders; or
(iiivi) reduce the any percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by the Borrower of any of its their rights and obligations under this AgreementAgreement and the other Credit Documents, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion substantially all of the Collateral, exceptCollateral or release all or substantially all of the Guarantors from their obligations under the Guarantee, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to case without the terms of this Agreement; provided further, that, in addition to the written consent of all the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Lenders; and
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the Issuer rights or any Lender duties of the Administrative Agent under this Agreement or any other Credit Document; provided, however, that notwithstanding anything to the contrary herein, (i) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (ii) the Required Lenders shall determine whether or not to allow a Loan Document shallParty to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders. Any payments, except as may be otherwise stated fees or other consideration (other than reimbursements for out-of-pocket expenses) received by or on behalf of the Administrative Agent or any of the Lenders in such respect of any amendment, waiver or approval, consent under the Credit Documents shall be applicable distributed to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveLenders on a pro rata basis.
Appears in 2 contracts
Samples: Credit Agreement (Acutus Medical, Inc.), Credit Agreement (Acutus Medical, Inc.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, Letters of Credit or thereof the Fee Letter, which shall be modified only in accordance with their respective terms) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no other such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which principal, interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) either Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated the Administrative Agent) or any Issuer (in its capacity as Issuer) unless consented to by clauses (i) through (vi)the Administrative Agent or such Issuer, inclusive, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Energy Xxi (Bermuda) LTD), First Lien Credit Agreement (Energy XXI Texas, LP)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) ), or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor or the General Partner from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 7.1.7 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement, or (vii) amend any provision of this Agreement which provides for pro-rata contributions by or pro-rata payment to such affected Lender; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments Commitment Amounts of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment Amount of any Lender, and that an increase in the available portion of any Revolving Loan Commitment Amount of any Lender shall not constitute an increase of the Revolving Loan Commitment Amount of such Lender, and that any payments made pursuant to Sections 2.6 and 2.9 shall not constitute an increase of the Revolving Loan Commitment Amount of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 2 contracts
Samples: Credit Agreement (Spirit Realty Capital, Inc.), Credit Agreement (Spirit Realty Capital, Inc.)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders, ; provided that no such changeamendment, waivermodification or waiver which would:
(a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(b) modify this Section 11.1 or change the definition of “Required Lenders” shall be made without the consent of each Lender;
(c) increase the Commitment(s) of any Lender, discharge reduce any fees described in Section 2.4 payable to any Lender or extend the Termination Date with respect to any Lender shall be made without the consent of such Lender;
(d) extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on any Advance or fees (or reduce the principal amount of or rate of interest on any Advance) applicable to any Lender shall be made without the consent of such Lender;
(e) extend the termination shall, date of a Letter of Credit beyond the latest Termination Date without the consent of each Lender whose Revolving Credit Commitment expires on such Termination Date;
(other than a Defaulting Lenderf) with Obligations being directly affected therebyaffect adversely the interests, (i) extend the final scheduled maturity of any Revolving Loan rights or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose obligations of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified Administrative Agent in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, capacity as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the such shall be made without consent of the Required Lenders required aboveAdministrative Agent;
(g) affect adversely the interests, no rights or obligations of the Swing Line Bank in its capacity as such changeshall be made without consent of the Swing Line Bank; or
(h) affect adversely the interests, waiver, discharge rights or termination shall (A) increase the Revolving Loan Commitments obligations of any Lender over the amount thereof then Issuing Bank in effect its capacity as such shall be made without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Issuing Bank. No failure or delay on the part of the Administrative Agent, the Issuer Agent or any Lender Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer Agent or any Lender Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsIf any Lender Party is a Non-Consenting Lender, powers the Borrower shall be entitled at any time to replace such Lender Party with another financial institution willing to take such assignment and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which reasonably acceptable to the Administrative Agent, the Issuer Swing Line Bank and each Issuing Bank; provided that (i) each such assignment shall be either an assignment of all of the rights and obligations of the assigning Lender Party under this Agreement or an assignment of a portion of such rights and obligations made concurrently with another such assignment or other such assignments that together cover all of the rights and obligations of the assigning Lender Party under this Agreement, (ii) such assignment shall not conflict with applicable law and (iii) no Non-Consenting Lender shall be obligated to make any such assignment as a result of a demand by the Borrower pursuant to this Section unless and until such Non-Consenting Lender would otherwise haveshall have received one or more payments from either the Borrower or one or more assignees in an aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing to such Non-Consenting Lender, together with accrued interest thereon to the date of payment of such principal amount and all other amounts payable to such Non-Consenting Lender under this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Royal Caribbean Cruises LTD), Credit Agreement (Royal Caribbean Cruises LTD)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) extend the Stated Maturity Date or modify this Section 10.1 without the consent of each all Lenders;
(b) increase the aggregate amount of any Lender's Percentage of any Commitment Amount, increase the aggregate amount of any Loans required to be made by a Lender pursuant to its Commitments (other than except pursuant to a Defaulting waiver or amendment permitted hereby) or reduce any fees described in Article III payable to any Lender without the consent of such Lender) with Obligations being directly affected thereby, ;
(ic) extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateLender's Loan, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i)on any Lender's Loan, so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) change the definition of "Required Lenders" or modifications any requirement hereunder that any particular action be taken by all Lenders without the consent of conditions precedentall Lenders;
(e) increase the Stated Amount of any Letter of Credit or any Lender's Percentage in such Letter of Credit or any Letter of Credit Outstandings in respect thereof, covenants, Defaults or Events unless consented to by the Issuer of Default or such Letter of a mandatory reduction Credit;
(f) except as otherwise contemplated in the Revolving Loan Commitment Amount shall not constitute an increase Documents, release (i) any Guarantor from its obligations under a Subsidiary Guaranty or (ii) all or substantially all of the Revolving Collateral under the Loan Commitment Documents, in either case without the consent of all Lenders as expressly provided herein or therein;
(g) change any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment terms of such Lender), clause (iii) of Section 2.1.4 or (B) Section 2.3.2 without the consent of the IssuerSwing Line Lender; or
(h) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
any Agent (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement its capacity as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(asuch), the consent of Swing Line Lender (in its capacity as Swing Line Lender) or the Required Lenders is obtained but Issuer (in its capacity as Issuer), unless consented to by such Agent, the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Swing Line Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long the Issuer, as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative any Agent, the Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower or any other Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative any Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 10.1, powers the Administrative Agent, in coordination with the Syndication Agent, shall have primary responsibility, together with the Borrower, in the negotiation, preparation, and remedies herein documentation relating to any amendment, modification or in waiver of this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
Appears in 1 contract
Samples: Credit Agreement (Medaphis Corp)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.110.1 or any other provision of this Agreement requiring unanimous approval of the Lenders, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) except during an Investment Grade Rating Period, release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the CollateralGuaranty, except, in each case, as provided in Section 7.1.9 or except in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided provided, further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.22.3.3, 2.1.42.3.4, or 2.62.8, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Senior Unsecured Credit Agreement (Strategic Hotels & Resorts, Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver which would: (a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender; (b) modify the first sentence of Section 4.8, discharge Section 4.9 or termination shallthis Section 10.1, change the definition of “Required Lenders”, reduce any fees described in Article III or, except in the manner set forth in Section 2.10, extend the Maturity Date, shall be made without the consent of each Lender; (c) except in the manner set forth in Section 2.10, extend the due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on any Loan or LC Disbursement (or reduce the principal amount of or rate of interest on any Loan or LC Disbursement) shall be made without the consent of the Lender which made such Loan or is otherwise affected thereby; (d) release the Borrower from any guarantee given under Section 2.12.2 in respect of a Foreign Borrower without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (ie) extend affect adversely the final scheduled maturity interests, rights or obligations of any Revolving Loan Agent as an Agent shall be made without the consent of such Agent or Note or extend the Stated Expiry Date of (f) amend Section 2.11(c) to permit any Letter of Credit beyond to expire after the Maturity DateDate without the consent of any Lender that is adversely affected thereby; provided, further, that no such amendment, modification or waiver which would either increase any Commitment or the Percentage of any Lender, or reduce modify the rate rights, duties or extend the time of payment of interest (except in connection with a waiver of applicability obligations of any post-default increase in interest ratesAgent, Issuing Bank or Swingline Lender, shall be effective without the consent of such Lender, such Agent, such Issuing Bank or such Swingline Lender, as applicable. Notwithstanding the foregoing, (i) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction may be modified as set forth in any rate of interest or fees for purposes of this clause (iSections 2.9(e), so long 2.9(f), 2.10(d), 2.12.4 and 4.2(b), and Schedules IIA and IIB hereto may be modified as provided in the primary purpose definitions of the respective amendments terms Swingline Commitment or modifications to Swingline Lenders or the financial definitions was not to reduce the interest terms LC Commitment or fees payable hereunder)Issuing Bank, (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptas applicable, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in (ii) any provision of this Agreement or any other Loan Document may be amended, without the available portion consent of any Revolving Loan Commitment Lender, by an agreement in writing entered into by the Borrower and the Administrative Agent to cure any obvious error or any ambiguity, omission, defect or inconsistency of a technical nature, so long as (A) such amendment does not adversely affect the rights of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent 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 Issuerdate of such notice to the Lenders, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of a written notice from the Required Lenders is obtained but stating that the consent of one or more of Required Lenders object to such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) amendment. No failure or delay on the part of the Administrative Agent, the Issuer any Lender, any Issuing Bank or any Swingline Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, ; nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer any Lender, any Issuing Bank or any Swingline Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Third Amendment (Noble Energy Inc)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 7.1.22 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided provided, further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of CreditCredit or (C) without the consent of the Non-Defaulting Lenders having or holding at least sixty-seven percent (67%) of the sum (without duplication) of the aggregate outstanding principal amount of the Revolving Loans, the aggregate amount of the Letter of Credit Outstandings and the unfunded amount of the Revolving Loan Commitment Amount, taken as a whole, amend, modify or waive the proviso set forth in the definition of “Available Commitment”.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided provided, further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, discharge extend any final Commitment Termination Date with respect to a Lender's Commitment, or termination shallreduce any fees described in Article III payable to any Lender, in any such case without the consent of such Lender; provided, however, that, unless all of the Lenders consent to the contrary, (i) the aggregate Commitments may not be increased at a time when any Default has occurred and is continuing and (ii) the aggregate Commitments may not be increased to an aggregate amount which is $25,000,000 greater than the aggregate Commitments existing on the Effective Date;
(c) extend or waive any date of payment of principal for any Lender's Loan (other than pursuant to Section 3.1.1(e), (f) or (g)), or reduce the principal amount of, rate of interest or fees on any Loan or Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor), or extend or waive the date on which interest or fees are payable in respect of such Loan or Reimbursement Obligation, in each case, without the consent of each the Lender which has made such Loan or, in the case of a Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or any Subsidiary Guarantor from its Obligations under the Subsidiary Guaranty (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver Disposition of applicability all or substantially all of any post-default increase the Capital Stock of such Subsidiary Guarantor in interest ratesa transaction permitted by Section 7.2.11) or fees thereon (ii) the Administrative Agent's Liens on all or reduce substantially all of the principal amount thereof (except to collateral under the extent repaid Loan Documents, in cash) or extend each case without the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate consent of interest or fees for purposes of this clause all Lenders;
(i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision clause (b) of this Section 10.1, 3.1.1 or (iiiii) reduce have the percentage specified in effect (either immediately or at some later time) of enabling the definition of Required Lenders, (iv) consent Borrower to satisfy a condition precedent to the assignment or transfer by Borrower making of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over or Swing Line Loan or the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or issuance of a mandatory reduction in Letter of Credit unless such amendment, modification or waiver shall have been consented to by the Revolving Loan Commitment Amount shall not constitute an increase holders of at least a majority of the Revolving Loan Commitment Commitments.
(g) amend, modify or waive the provisions of clause (b) of Section 3.1.2, or effect any Lenderother amendment, and modification or waiver that an increase by its terms adversely affects the rights of Lenders participating in any Tranche differently from those of Lenders participating in other Tranches, unless, in any such case, such amendment, modification or waiver shall have been consented to by the holders of at least a majority of the aggregate amount of Loans outstanding under the Tranche or Tranches affected by such modification, or, in the available portion case of any a modification affecting the Revolving Loan Commitment of any Lender shall not constitute an increase Commitments, the Lenders holding at least a majority of the Revolving Loan Commitment Commitments; (it being agreed and understood that modifications which affect all Lenders ratably shall not be considered hereunder as affecting Lenders of any Tranche differently).
(h) with respect to any LIBO Rate Loan, waive the requirement that each Lender consent to an Interest Period of twelve months with respect to such Lender)Loan, or unless consented to by each Lender making such Loan;
(Bi) change any of the terms of Section 2.3.2 without the consent of the IssuerSwing Line Lender; or
(j) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated the Administrative Agent) or the Issuer, unless consented to by clauses (i) through (vi)the Administrative Agent or the Issuer, inclusive, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Stericycle Inc)
Waivers, Amendments, Etc. (a) Neither Except as expressly provided ------------------------ hereby and in the Indenture or Credit Agreement, the terms of this Agreement nor any other Loan Document nor any terms hereof or thereof may be waived, altered, amended, modified, changed, waived, discharged or terminated unless such only by an instrument in writing duly executed by each of the parties hereto and approved by the Required Secured Parties; provided, however, that a waiver, alteration, amendment, modification, change, waiver, discharge or termination is in writing signed by that affects only the respective parties thereto and (i) to the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender Credit Agreement (other than the Pledgor) and does not adversely affect the Trustee or the Holders shall be effective if made by an instrument in writing duly executed by each of the parties hereto other than the Trustee and (ii) to the Indenture (other than the Pledgor) and does not adversely affect the Lenders or the Administrative Agent shall be effective if made only by the parties hereto other than the Administrative Agent and approved by the Holders of a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except majority in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof of the Securities.
(except b) Anything herein to the extent repaid in cash) or extend contrary notwithstanding if the time for payment thereof (it being understood that Pledgor incurs any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i)indebtedness which qualifies as Refinancing Indebtedness, so long as the primary purpose each of the respective parties hereto will, upon the request of the Pledgor, enter into any amendments or modifications to this Agreement for the financial definitions was not purpose of (i) modifying the definition of Debt Documents to reduce include all material agreements entered into in connection with the interest or fees payable hereunder)Refinancing Indebtedness, (ii) amend, modify or waive any provision modifying the definition of this Section 10.1Joint Secured Parties to include the relevant parties to such Refinancing Indebtedness, (iii) reduce providing for the percentage specified in addition of any party or the definition substitution of Required Lendersthe Administrative Agent or the Trustee, as appropriate, (iv) consent revising the definition of "Parity Pro Rata Basis" and similar terms such that the holders of such Refinancing Indebtedness have the same pro rata rights as are applicable to the assignment or transfer by Borrower of any of its rights Joint Secured Parties and obligations under this Agreement, (v) release Guarantor from making such other modifications as are reasonably necessary or desirable to include such Refinancing Indebtedness hereunder; provided, however, that no such amendment or modification shall amend the Guaranty, rights or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion duties of the CollateralJoint Collateral Agent, exceptthe Trustee or the Administrative Agent hereunder, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the express 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Creditparty.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Pledge and Security Agreement (Mission Energy Holding Co)
Waivers, Amendments, Etc. The provisions of this Agreement and of each other Loan Document (other than any Rate Protection Agreement) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and the Required Lenders (or, in the case of any Rate Protection Agreement, the Borrower and the Lender party thereto); provided, however, that no such amendment, modification or waiver shall:
(a) Neither modify this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, Section 10.1 without the consent of each all Lenders;
(b) increase any Lender's Percentage of any Commitment Amount, increase any Lender's Commitment, extend the final Commitment Termination Date of Credit Extensions made (or participated in) by a Lender, waive a default in the payment of principal, interest or fees owing to a Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender;
(other than a Defaulting Lender) with Obligations being directly affected thereby, (ic) extend the date (including the final scheduled maturity Stated Maturity Date) of repayment or prepayment of any Revolving Loan Lender's Loans or Note the principal amount required to be repaid or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Dateprepaid on such date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or rate of interest on any Lender's Loan or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of date on which interest or fees for purposes are payable in respect of this clause (i), so long as such Lender's Loans or change the primary purpose application of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this payment contained in Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except3.1.2, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events amounts owing with respect to the Loans and other Obligations shall only require the vote of Default or of a mandatory reduction the Required Lenders);
(d) reduce the percentage set forth in the Revolving Loan Commitment Amount shall not constitute an increase definition of the Revolving Loan Commitment of "Required Lenders" or any Lender, and requirement hereunder that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the IssuerStated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in this Agreement (including, amendwithout limitation, modify Section 10.16) or waive another Loan Document, release (i) any provision Guarantor from its obligations under a Guaranty or (ii) all or substantially all of Sections 2.1.2the collateral under the Loan Documents, 2.1.4in either case without the consent of all Lenders; or
(g) affect adversely the interests, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Agent (in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate its capacity as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent), the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated Issuer (in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.its capacity as
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof No amendment or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as (other than the Agency Fee Letter which may be otherwise stated amended solely by the terms thereof), and no consent to any departure by the Borrower or any Guarantor therefrom, shall be effective unless in writing signed by the Required Lenders and by the Borrower or the applicable Guarantor, as the case may be, and acknowledged by the Agent, and each such waiver or approvalconsent shall be effective only in the specific instance and for the specific purpose for which given; provided, be applicable to subsequent transactions. No further, that: (a) no such amendment, waiver or approval hereunder shall require consent shall: (i) extend or increase the Commitment of a Lender (or reinstate any similar Commitment terminated pursuant to this Agreement) without the written consent of such Lender whose Commitment is being extended or dissimilar increased (it being understood and agreed that a waiver of any condition precedent set forth in Article V or approval thereafter to be granted hereunder. The rights, powers and remedies herein a waiver of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender); (ii) postpone any date fixed by this Agreement or any other Loan Document expressly provided are cumulative for any payment of principal (excluding mandatory prepayments or scheduled amortization and not exclusive related amounts payable in connection therewith), interest, Repayment Premiums, fees or other amounts due to the Lenders (or any of them) without the written consent of each Lender entitled to receive such payment (it being understood that a waiver of any rights, powers Default or remedies which Event of Default (or of any related default interest payable pursuant to Section 3.5) shall not constitute such a postponement); (iii) reduce the Administrative Agentprincipal of, the Issuer rate of interest specified herein on or any Repayment Premium specified herein on any Loan, or any fees or other amounts payable hereunder or under any other Loan Document (including, for the avoidance of doubt, the Exit Fee) without the written consent of each Lender would otherwise have.entitled to receive such payment of principal, interest, fees or other amounts (other than any such reduction in connection with a waiver of any Default, Event of Default (including, for the avoidance of doubt, any default interest payable pursuant to Section 3.5), mandatory prepayment, amortization payment or amendment to any financial covenant); (iv) (x) amend or waive any provision of Section 9.4, or (y) amend or waive any provision providing for the pro rata treatment of the Lenders, in each case, without the written consent of each Lender directly affected thereby; (v) change any provision of this Section 13.1(a) or the definition of “Required Lenders” without the written consent of all the Lenders; or
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (iRhythm Technologies, Inc.)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify this Section 11.1 without the consent of all Lenders;
(b) increase the aggregate amount of any Lender’s Percentage of any Commitment Amount, discharge increase the aggregate amount of any Loans to be made by a Lender pursuant to its Commitments, extend the Revolving Commitment Termination Date of Credit Extensions made (or termination shallparticipated in) by a Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender’s Loan, or reduce the principal amount of or rate of interest on any Lender’s Loan or extend the date on which scheduled payments of principal, or payments of interest or fees are payable in respect of any Lender’s Loans, in each case, without the consent of each such Lender (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 9.2 and Section 9.3 of amounts owing with respect to the Loans and other than a Defaulting LenderObligations shall only require the vote of the Required Lenders);
(d) with Obligations being directly affected thereby, reduce the percentage set forth in the definition of “Required Lenders” or any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(ie) extend increase the final scheduled maturity Stated Amount of any Revolving Loan or Note Letter of Credit or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with to a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except date which is subsequent to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptRevolving Loan Commitment Termination Date, in each case, unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in Section 7.1.9 this Agreement or another Loan Document, release (i) any Guarantor from its obligations under a Guaranty other than in connection with a Disposition of all or refinancing that is otherwise substantially all of the Capital Securities of such Guarantor in a transaction permitted pursuant by Section 7.2.9 as in effect from time to time or (ii) all or substantially all of the terms of this Agreement; provided further, thatcollateral under the Loan Documents, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect either case without the consent of such Lender all Lenders;
(it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase g) change any of the Revolving Loan Commitment terms of any Lender, and that an increase in the available portion clause (c) of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), Section 2.1.4 or (B) Section 2.3.2 without the consent of the IssuerSwing Line Lender; or
(h) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(aAdministrative Agent), the consent of Syndication Agent (in its capacity as the Required Lenders is obtained but Syndication Agent) or any Issuer (in its capacity as Issuer), unless consented to by the consent of one Administrative Agent, the Syndication Agent or more of such other Lenders whose consent is required is not obtainedIssuer, then as the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Syndication Agent, any Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower or any other Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Syndication Agent, any Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Weight Watchers International Inc)
Waivers, Amendments, Etc. (a) Neither No amendment or waiver of any provision of this Agreement nor or any other Loan Document nor Document, and no consent to any terms hereof departure by Holdings, the Borrower or thereof may any other Subsidiary therefrom, shall be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto Required Lenders and the Required LendersBorrower and acknowledged by the Administrative Agent, provided that and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that
(a) no such changeamendment, waiver, discharge waiver or termination consent shall, :
(i) extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 9.2) without the written consent of such Lender whose Commitment is being extended or increased (it being understood and agreed that a waiver of any condition precedent set forth in Article V or a waiver of any Default or Event of Default or a mandatory reduction in Commitments pursuant to the terms of this Agreement is not considered an extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal (excluding mandatory prepayments), interest, Repayment Premiums, fees or other amounts due to the Lenders (or any of them) without the written consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of entitled to receive such payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that a waiver of any amendment Default or modification to the financial definitions in this Agreement Event of Default shall not constitute such a reduction in any postponement);
(iii) reduce the principal of, the rate of interest specified herein on, or any Repayment Premium or applicable Exit Fee specified herein on any Loan, or any other fees for purposes or other amounts payable hereunder or under any other Loan Document without the written consent of this clause each Lender entitled to receive such payment of principal, interest, fees or other amounts;
(i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), iv) (iix) amend, modify amend or waive any provision of Section 9.4, or (y) amend or waive Section 4.4(e) or any other provision providing for the pro rata treatment of the Lenders, in each case without the written consent of Lender directly affected thereby;
(v) change any provision of this Section 10.110.1(a), the definition of “Required Lenders” without the written consent of all the Lenders or any provision of this Agreement or any other Loan Documents providing for consent or other action by all Lenders;
(iiivi) reduce the any percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by the Borrower of any of its their rights and obligations under this AgreementAgreement and the other Loan Documents, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion substantially all of the CollateralCollateral or release all or substantially all of the Guarantors from their obligations under the Guarantee, exceptin each case without the written consent of all the Lenders;
(vii) release or subordinate any Lien granted in favor of the Administrative Agent with respect to all or substantially all of the Collateral or release all or substantially all of the value of the guarantees of the Obligations provided by the Guarantors, in each case, as provided other than in Section 7.1.9 or in connection accordance with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided furtherthe Loan Documents;
(viii) amend, thatwaive or modify the penultimate paragraph of Section 7.1, Section 7.15, or Section 10.14, in addition to each case, without the consent of each Public-Side Lender; or
(ix) amend, waive or modify Section 11.6 hereof, without the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Lenders; and
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the Issuer rights or any Lender duties of the Administrative Agent under this Agreement or any other Loan Document shallDocument; provided, except however, that notwithstanding anything to the contrary herein, (i) each Lender is entitled to vote as may such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (ii) the Required Lenders shall determine whether or not to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be otherwise stated binding on all of the Lenders. Any payments, fees or other consideration (other than reimbursements for out-of-pocket expenses) received by or on behalf of the Administrative Agent or any of the Lenders in such respect of any amendment, waiver or approval, consent under the Loan Documents shall be applicable distributed to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveLenders on a pro rata basis.
Appears in 1 contract
Samples: Credit Agreement (Valneva SE)
Waivers, Amendments, Etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrower and each Obligor party thereto and by the Required Lenders; provided, however, that (i) subject to Section 2.2.2., no consent of any Lender (other than any Lender providing an Additional Revolving Loan Commitments or Additional Term Loan Commitments) shall be required in connection with any amendment or modification required to effect such Additional Revolving Loan Commitments or Additional Term Loan Commitments and the obligations of the Obligors in respect thereof, (ii) no consent of any Lender shall be required in connection with any amendment or modification of any Loan Document required to give the holder of any Indebtedness secured by Liens permitted under Section 7.2.3(j) the benefits of the Liens granted under, and the rights of the Secured Parties under, each Pledge Agreement, the Subsidiary Guarantee and each Mortgage and (iii) any such amendment, modification or waiver of the type set forth below shall require the consent of the Person or Persons described below for such amendment, modification or waiver:
(a) Neither this Agreement nor Unless consented to by each Lender, no such amendment, modification or waiver shall be effective if it would modify any other Loan Document nor requirement hereunder that any terms hereof particular action be taken by all the Lenders, all the Lenders with respect to any Tranche of Loans or thereof may be changed, waived, discharged Commitments or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, release AHC from its obligations under the AHC Guaranty and Pledge Agreement, release Holdco from its obligations under the Holdco Guaranty and Pledge Agreement, release any Subsidiary Guarantor or Subsidiary Guarantors that individually or in the aggregate constitute a Substantial Subsidiary from its or their obligations under the Subsidiary Guaranty (except as otherwise provided that in the Subsidiary Guaranty), if any, or release all or substantially all of the collateral security (except in each case as otherwise specifically provided in this Agreement, any such Subsidiary Guaranty or a Pledge Agreement).
(b) Unless consented to by each Lender adversely affected thereby, no such changeamendment, waivermodification or waiver shall be effective if it would modify this Section 10.1 or clause (a) of Section 10.10, discharge change the definition of “Required Lenders”, increase any Commitment Amount or termination shall, without the consent Percentage of each any Lender (other than a Defaulting Lenderpursuant to Section 2.2.2), reduce any fees described in Section 3.3 (other than the administration fee referred to in Section 3.3.2) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Revolving Loan Commitment Termination Date.
(c) No such amendment, modification or reduce the rate or waiver shall be effective if it would extend the time of payment of interest (except in connection with a waiver of applicability of Stated Maturity Date for any post-default increase in interest rates) or fees thereon Loan or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest on or fees payable hereunderin respect of any Loan or any Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor), unless such amendment, modification or waiver shall have been consented to by the Lender which has made such Loan or, in the case of a Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such Reimbursement Obligation.
(iid) No such amendment, modification or waiver shall be effective if it would affect adversely the interests, rights or obligations of any Agent, Issuer or Lead Arrangers (in its capacity as Agent, Issuer or Lead Arrangers), unless such amendment, modification or waiver shall have been consented to by such Agent, Issuer or Lead Arrangers, as the case may be.
(e) No such amendment, modification or waiver shall be effective if it would amend, modify or waive the provisions of clause (a)(i)(A) of Section 3.1.1 or effect any provision amendment, modification or waiver that by its terms adversely affects the rights of this Section 10.1Lenders participating in any Tranche differently from those of Lenders participating in other Tranches, (iii) reduce unless such amendment, modification or waiver shall have been consented to by the percentage specified holders of at least a majority of the aggregate amount of Loans outstanding under the Tranche or Tranches affected by such modification, or, in the definition case of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase modification affecting the Revolving Loan Commitments of any Lender over Commitments, the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of Lenders holding at least a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase majority of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Commitments. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 10.1, powers the Syndication Agent, in coordination with the Administrative Agent, shall have primary responsibility, together with the Borrower, in the negotiation, preparation and remedies herein documentation relating to any amendment, modification or in waiver under this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither No amendment or waiver of any provision of this Agreement nor or any other Loan Document nor Document, and no consent to any terms hereof departure by the Borrower or thereof may any other Loan Party therefrom, shall be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto Required Lenders and the Required LendersBorrower or the applicable Loan Party, provided that as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that
(a) no such changeamendment, waiver, discharge waiver or termination consent shall, :
(i) extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 9.2) without the written consent of such Lender whose Commitment is being extended or increased (it being understood and agreed that a waiver of any condition precedent set forth in Article V or a waiver of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal (excluding mandatory prepayments), interest, Repayment Premiums, fees or other amounts due to the Lenders (or any of them) without the written consent of each Lender entitled to receive such payment (it being understood that a waiver of any Default or Event of Default shall not constitute such a postponement);
(iii) reduce the principal of, the rate of interest specified herein on or any Repayment Premium specified herein on any Loan, or any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment of principal, interest, fees or other amounts (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except such reduction in connection with a waiver of applicability any Default, Event of Default, mandatory prepayment or amendment to any post-default increase in interest ratesfinancial covenant);
(iv) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cashx) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify amend or waive any provision of Section 9.4, or (y) amend or waive any provision providing for the pro rata treatment of the Lenders, in each case without the written consent of each Lender directly affected thereby;
(v) change any provision of this Section 10.1, 10.1(a) or the definition of “Required Lenders” without the written consent of all the Lenders;
(iiivi) reduce the any percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by the Borrower of any of its then- rights and obligations under this AgreementAgreement and the other Loan Documents, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion substantially all of the Collateral, exceptCollateral or release all or substantially all of the Guarantors from their obligations under the Guarantee, in each casecase without the written consent of all the Lenders;
(vii) (x) amend, as provided in waive or modify Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further11.6 hereof, that, in addition to without the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Lenders;
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the Issuer rights or any Lender duties of the Administrative Agent under this Agreement or any other Loan Document shallDocument; and
(c) unless also signed by the Origination Agent, except as may be otherwise stated in such no amendment, waiver or approval, be applicable to subsequent transactions. No waiver consent shall affect the rights or approval hereunder shall require any similar duties of the Origination Agent under this Agreement or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative Document; provided, however, that notwithstanding anything to the contrary herein, (i) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (ii) the Required Lenders shall determine whether or not exclusive to allow a Loan Party to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders. Any payments, fees or other consideration (other than reimbursements for out-of-pocket expenses) received by or on behalf of the Administrative Agent or any of the Lenders in respect of any rightsamendment, powers waiver or remedies which consent under the Administrative Agent, Loan Documents shall be distributed to the Issuer or any Lender would otherwise haveLenders on a pro rata basis.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure ------------------------ or delay on the part of the Administrative AgentAgents, the Issuer Issuing Banks, the Paying Agent or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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 Agents, privilege the Issuing Banks, the Paying Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower there from shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.16 or by an Eligible Assignee pursuant to Section 8.03, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative AgentBorrower and the Required Lenders, (ii) in the Issuer case of the Guarantee Agreement, pursuant to an agreement or agreements in writing entered into by the Guarantors and the Paying Agent and consented to by the Required Lenders or (iii) in the case of a Letter of Credit, pursuant to an agreement or agreements entered into by the Borrower and the applicable Issuing Bank; provided, however, that no such -------- ------- agreement shall (A) change the principal amount of any Advance or Letter of Credit Obligation, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Section 2.16), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender or reduce or extend the date for payment of the Facility Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or any (C) amend or modify the provisions of this Section 8.01(b) or Section 8.05 or the definition of the term "Required Lenders" without the prior written consent of each Lender; and provided further that no such agreement shall -------- ------- amend, modify or other Loan Document shall, except as may be otherwise stated in such waiver wise affect the rights or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive duties of any rights, powers or remedies which the Administrative Agents, the Issuing Banks or the Paying Agent hereunder without the prior written con sent of the Administrative Agents, the Issuing Banks or the Paying Agent, the Issuer or any Lender would otherwise haverespectively.
Appears in 1 contract
Samples: Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor (other than any terms hereof Letter of Credit or thereof a Rate Protection Agreement) under which amendments, modifications and waivers may be changedeffected by the parties thereto) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each Lender all Lenders;
(other than a Defaulting Lenderb) with Obligations being directly affected thereby, (i) extend increase the final scheduled maturity aggregate amount of any Revolving Credit Extensions required to be made by any Lender pursuant to its Commitments, extend any Commitment of any Lender, extend any Stated Maturity Date for any Lender's Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateSynthetic Deposit, or reduce the rate or extend the time of payment of interest (except any fees described in connection with a waiver of applicability of Article III payable to any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 9.2 and Section 9.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender's Loan, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable to any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) each case without the consent of such Lender (provided that, the Issuervote of Required Lenders shall be sufficient to waive the payment, or reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders;
(g) amend, modify or waive Section 5.3.1, unless, in either case, such amendment, modification or waiver shall have been consented to by the Lenders holding a majority of the aggregate amount of the Revolving Loan Exposure;
(h) change any provision of Sections 2.1.2this Agreement in a manner that by its terms adversely affects the rights in respect of payments due to either Revolving Loan Lenders, 2.1.4Term Loan Lenders or Synthetic Lenders, differently from the other Lenders, without the consent of either the Revolving Loan Lenders, Term Loan Lenders or 2.6Synthetic Lenders, or alter its as applicable, holding a majority in interest of the applicable portion of the Total Exposure Amount of such adversely affected Lenders;
(i) affect adversely the interests, rights or obligations of the Administrative Agent (in its capacity as the Administrative Agent) or any Issuer, unless consented to by the Administrative Agent or such Issuer, as the case may be; or
(j) with respect to Letters of Credit.
(b) Ifany LIBO Rate Loan, in connection with any proposed changeamend, waiver, discharge waive or termination modify the requirement that the Interest Period relative to any of the provisions of this Agreement as contemplated such Loan be one, two, three, six or, if available to all Lenders, nine or twelve months in duration, unless consented to by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of each Lender making such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Loan. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither No amendment or waiver of any provision of this Agreement nor or any other Loan Transaction Document, and no consent to any departure by the Transferor, the Servicer or any other party to any Transaction Document nor any terms hereof or thereof may therefrom, shall be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto Requisite Purchasers and the Required LendersTransferor, provided the Servicer or the applicable party to such Transaction Document, as the case may be, and acknowledged by the Administrative Agent, and each 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 changeamendment, waiverwaiver or consent shall:
(a) increase or extend any Purchaser’s Purchaser Commitment or subject any Purchaser to additional obligations without the written consent of such Purchaser;
(b) postpone or extend any date fixed by this Agreement or any other Transaction Document for any payment of fees or any other amounts due to any Purchaser hereunder without the written consent of each Purchaser directly affected thereby;
(c) reduce any fees or other amounts payable to any Purchaser hereunder (including without limitation the Purchasers’ Investment and Yield Reserve owing thereto) without the written consent of each Purchaser directly affected thereby; provided, discharge or termination shallhowever, without that only the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, the Requisite Purchasers shall be necessary (i) extend to amend the final scheduled maturity definition of “Default Rate” or (ii) to waive any Revolving Loan obligation of the Transferor, Servicer or Note Guarantor to pay interest at the Default Rate;
(d) change any Purchaser’s Percentage without the written consent of such Purchaser;
(e) amend this Section or extend Section 8.10 without the Stated Expiry Date written consent of each Purchaser;
(f) release the Guarantor from any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except obligation undertaken by it pursuant to the extent repaid in cashPurchase and Sale Agreement without the written consent of each Purchaser;
(g) substitute or extend add Obligors without the time for payment thereof written consent of each Purchaser;
(it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose h) amend Section 7.01(i) of the respective amendments or modifications to the financial definitions was not Agreement to reduce the interest or fees payable hereunder), minimum debt ratings required as to any Obligor set forth therein without the written consent of each Purchaser; or
(iii) amend, modify or waive change any provision of this Section 10.1, (iii) reduce the percentage specified in or the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all “Requisite Purchasers” or any material portion other provision hereof specifying the number or percentage of Purchasers required to amend, waive or otherwise modify any rights hereunder without the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the written consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or terminationPurchaser; provided further, that no amendment, waiver or consent shall (i), unless in any event writing and signed by the 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 Administrative Agent in addition to the second proviso to Section 10.1(a).
(c) No failure Requisite Purchasers or delay on all the part Purchasers, as the case may be, affect the rights or duties of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or Agent under any other Loan Document shall operate as Transaction Document, or (ii) have the effect of making any Purchaser’s Percentage hereunder a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or different percentage than its Applicable Percentage under the exercise of any other power, privilege or rightMattel Credit Agreement. No notice to or demand on the Borrower any Seller Party in any case shall entitle it any Seller Party to any other or further notice or demand in similar or other circumstances. No Any amendment, modification, termination, waiver or approval consent effected in accordance with this Section 10.01 shall be binding upon each Purchaser at the time outstanding, each future Purchaser and, if signed by the Administrative AgentSeller Parties, on the Seller Parties. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Purchasers may be effected with the consent of all Purchasers other than Defaulting Purchasers), except that (i) the Purchaser Commitment of a Defaulting Purchaser may not be increased or extended, the Issuer Purchasers’ Investment or (except as provided in the proviso in clause (c) above) the Yield Reserve owing to such Defaulting Purchaser or fees or other amounts payable hereunder or under any Lender under other Transaction Document to such Defaulting Purchaser may not be reduced, nor the Percentage of Purchasers’ Investment of such Defaulting Purchaser be reduced without, in each case, the consent of such Defaulting Purchaser and (ii) any amendment, waiver or consent may not postpone any date fixed by this Agreement or any other Loan Transaction Document shallfor any payment of Purchasers’ Investment, except as may be otherwise stated in Yield Reserve, fees or other amounts due to the Defaulting Purchaser without the consent of such Defaulting Purchaser, (iii) any amendment, waiver or approval, be applicable to subsequent transactions. No waiver consent requiring the consent of all Purchasers or approval hereunder each affected Purchaser that by its terms affects any Defaulting Purchaser more adversely than other affected Purchasers shall require the consent of such Defaulting Purchaser, (iv) no amendment to the exception of which this clause (iv) is a part shall be effective without the consent of each Defaulting Purchaser, and (v) any similar amendment of, or dissimilar consent waiver or approval thereafter to be granted hereunder. The rightswith respect to, powers Section 10.15 shall require the consent of the Requisite Purchasers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveeach Defaulting Purchaser.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) extend any Commitment Termination Date or modify this Section 10.7 without the consent of each all Lenders;
(b) increase any Commitment Amount, increase the aggregate amount of any Lender's Percentage of any Commitment Amount, increase the aggregate amount of any Loans required to be made by a Lender pursuant to its Commitments or reduce any fees described in Article III payable to any Lender without the consent of such Lender;
(other than a Defaulting Lender) with Obligations being directly affected thereby, (ic) extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateLender's Loan, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or rate of interest on any Lender's Loan or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of date on which interest or fees for purposes are payable in respect of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptsuch Lender's Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 9.2 and Section 9.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(d) change the definition of "Required Lenders" or any Lender, and requirement hereunder that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the IssuerStated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) release (i) any Guarantor from its obligations under a Guaranty (except as contemplated under this Agreement with respect to the Cayenta Group upon the issuance of shares in connection with the initial public offering of Cayenta pursuant to the terms of the applicable underwriting agreement or (y) the SureBeam Group upon the issuance of shares in connection with the initial public offering of SureBeam on or prior to June 30, amend2001 pursuant to the terms of the applicable underwriting agreement) or (ii) all or substantially all of the collateral under the Loan Documents, modify in either case without the consent of all Lenders as expressly provided herein or waive therein;
(g) change any provision of Sections 2.1.2the terms of clause (d) of Section 2.4 or Section 2.8 without the consent of CSFB; or
(h) affect adversely the interests, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vithe Administrative Agent), inclusive, of the first proviso to Section 10.1(aor any Issuer (in its capacity as Issuer), unless consented to by the consent of Administrative Agent or such Issuer, as the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the any Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower or any other Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the any Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure ------------------------- or delay on the part of the Administrative AgentAgents, the Issuer Paying Agent or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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 Agents, privilege the Paying Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.16 or by an Eligible Assignee pursuant to Section 8.03, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative AgentBorrower and the Required Lenders or (ii) in the case of the Guarantee Agreement, pursuant to an agreement or agreements in writing entered into by the Issuer Guarantors and the Paying Agent and consented to by the Required Lenders; provided, however, that no such agreement -------- ------- shall (A) change the principal amount of any Advance, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Sections 2.05 and 2.16), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender or reduce or extend the date for payment of the Facility Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or any other Loan Document shall(C) amend or modify the provisions of this Section 8.01(b) or Section 8.05 or the definition of the term "Required Lenders" without the prior written consent of each Lender; and provided further that no -------- ------- such agreement shall amend, except as may be modify or otherwise stated in such waiver affect the rights or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive duties of any rights, powers or remedies which the Administrative Agents or the Paying Agent hereunder without the prior written consent of the Administrative Agents or the Paying Agent, the Issuer or any Lender would otherwise haverespectively.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Rate Protection Agreements, Letters of Credit or thereof the Fee Letter, which shall be modified only in accordance with their respective terms) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Company and the Required Lenders, ; provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7 or Section 4.8 (as it relates to sharing of payments) or this Section, discharge or termination shallin each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness), the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that the Issuervote of Required Lenders shall be sufficient to waive the payment, or reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrowers from their Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders;
(g) amend, modify or waive after the Closing Date any provision condition precedent set forth in Section 5.2 (or any Default to the extent such amendment, waiver or other modification would enable the Borrowers to satisfy clause (b) of Sections 2.1.2Section 5.2.1) unless consented to by the Required Revolving Lenders; or
(h) affect adversely the interests, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
any Agent (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement its capacity as contemplated by clauses (i) through (visuch Agent), inclusive, of the first proviso to Section 10.1(aany Issuer (in its capacity as Issuer), or the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long Swing Line Lender (in its capacity as all non-consenting Lenders whose individual consent is required are treated as described below, Swing Line Lender) unless consented to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Person, as the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Ferro Corp)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by Holdings, Intermediate Holdings, the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, discharge extend the final Commitment Termination Date of Credit Extensions made (or termination shallparticipated in) by a Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender's Loan, or reduce the principal amount of, rate of interest or fees on any Loan or Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor), or extend the date on which interest or fees are payable in respect of such Loan or Reimbursement Obligation, in each case, without the consent of each the Lender (other than which has made such Loan or, in the case of a Defaulting Lender) with Obligations being directly affected therebyReimbursement Obligation, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateIssuer owed, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any amendment or modification vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the financial definitions Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in this Agreement shall not constitute the definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a reduction in any rate of interest or fees for purposes of this clause Loan Document, release (i)) Holdings, so long as Intermediate Holdings or any Borrower from its Obligations under the primary purpose Loan Documents or any Guarantor from its Obligations under a Guaranty or (ii) all or substantially all of the respective amendments or modifications to collateral under the financial definitions was not to reduce Loan Documents, in each case without the interest or fees payable hereunder), consent of all Lenders;
(iii) amend, modify or waive clause (b) of Section 3.1.1 or (ii) have the effect (either immediately or at some later time) of enabling any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent Borrower to satisfy a condition precedent to the assignment making of a Revolving Loan or transfer the issuance of a Letter of Credit unless such amendment, modification or waiver shall have been consented to by Borrower the holders of any at least 51% of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of the applicable Tranche.
(g) amend, modify or waive the provisions of clause (a)(i), (c) or (d) of Section 3.1.1 or clause (b) of Section 3.1.2, or effect any Lender over amendment, modification or waiver that by its terms adversely affects the rights of Lenders participating in any Tranche differently from those of other Lenders participating in other Tranches, unless such amendment, modification or waiver shall have been consented to by the holders of at least 51% of the aggregate amount thereof then of Loans outstanding under the Tranche or Tranches affected by such modification, or, in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or case of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase modification affecting any of the Revolving Loan Commitment of any Lender-120- 121 Commitments, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase Lenders holding at least 51% of the Revolving Loan Commitment Commitments of such Lender), the applicable Tranche;
(h) change any of the terms of clause (e) of Section 2.1.4 or (B) Section 2.3.2 without the consent of the IssuerSwing Line Lender; or
(i) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
either Agent (bin its capacity as an Agent) If, or any Issuer (in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement its capacity as contemplated by clauses (i) through (vian Issuer), inclusive, of the first proviso unless consented to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Agent or such Issuer, as the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative either Agent, the any Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative either Agent, the any Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 11.1, powers the Syndication Agent, in coordination with the Administrative Agent, shall have primary responsibility, together with Holdings, Intermediate Holdings and remedies herein the Borrowers, in the negotiation, preparation and documentation relating to any amendment, modification or in waiver under this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other No amendment, modification or waiver that increases the Revolving Loan Document nor any terms hereof Amount or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent "Percentage of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity Aggregate Outstandings" of any Revolving Loan or Note or extend Bank (as defined in that certain Intercreditor and Collateral Agency Agreement of even date herewith, entered into by and among the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunderBanks), (ii) amend, modify changes the definition of the Borrowing Base Amount or waive any provision of this Section 10.1Eligible Receivables, (iii) reduce reduces the percentage specified in the definition of Required LendersRevolving Loan Amount, (iv) consent modifies the interest rate or postpones the date fixed for any payment of principal or interest due or to become due hereunder, under the assignment Notes or transfer by Borrower of under any of its rights and obligations under this Agreementrelated documents, (v) release Guarantor from releases any material portion of the GuarantyCollateral or any other security pledged by the Borrower, except as contemplated by this Agreement, the Security Agreement, or the other Borrower Documents, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty amends, modifies or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of waives one or more of the financial covenants set forth in Section 7.R. or this Section 11.A., shall be effective unless such amendment, modification or waiver is in writing and consented to by all of the Banks. All other Lenders whose consent provisions of this Agreement, including the closing conditions set forth herein, and of each Borrower Document may from time to time be amended, modified or waived, only if such amendment, modification or waiver is required is not obtained, then consented to in a writing executed by at least two of the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents Banks. Notwithstanding anything to the proposed changecontrary herein, waiverno amendment, discharge modification or termination; provided furtherwaiver that increases, that decreases or otherwise affects the Term Loan or the Term Loan Amount shall be effective unless such amendment, modification or waiver is in any event the Borrower shall not have the right writing and consented 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 the second proviso to Section 10.1(a).
(c) Marquette. No failure or delay on the part of any Bank or the Administrative Agent, the Issuer or holder of any Lender Note in exercising any power, privilege power or right under this Agreement, the Security Agreement or under any other Loan Borrower Document executed pursuant hereto shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveprovided by law.
Appears in 1 contract
Samples: Restated Revolving Credit and Term Loan Agreement (First Team Sports Inc)
Waivers, Amendments, Etc. The provisions of each Loan Document (other than Cash Management Agreements, Rate Protection Agreements or Letters of Credit, which shall be modified only in accordance with their respective terms) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Company and the Required Lenders (or the Administrative Agent acting as directed by the Required Lenders); provided, that any amendment that would disproportionately affect the obligation of the Company (i) to reimburse obligations under the Revolving Facility will not be effective without the approval of the Required Revolving Lenders or (ii) to make any payments with respect to Loans under the Term Facility will not be effective without the approval of the Required Term Lenders or; provided, further, that no such amendment, modification or waiver shall:
(a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest ratesmodify Section 4.7(b) or fees thereon or reduce the principal amount thereof Section 4.8 (except as it relates to the extent repaid in cashsharing of payments) or extend the time for payment thereof (it being understood that any amendment this Section or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive change any provision of this Section 10.1, (iii) reduce Agreement in any manner that would alter the percentage specified in pro rata sharing of payments or other amounts or the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion pro rata treatment of the Collateral, exceptLenders, in each case, as provided in Section 7.1.9 without the written consent of each Lender directly and adversely affected thereby;
(b) extend or in connection with increase the aggregate amount of any Credit Extensions required to be made by a Disposition or refinancing that is otherwise permitted Lender pursuant to the terms its Commitments, postpone or extend any date scheduled for any payment of this Agreement; provided further, thatprincipal (including at final maturity) of Credit Extensions made (or participated in) by a Lender, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect each case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness) the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided, that the Issuervote of Required Lenders shall be sufficient to waive the payment, amendor reduce the increased portion, modify of interest accruing under Section 3.2.2);
(d) change the required application of any repayments or waive prepayments pursuant to Section 3.1.2 without the written consent of each Lender directly and adversely affected thereby;
(e) change any provision of Sections 2.1.2(i) this Section 10.1 or (ii) the definition of “Required Revolving Lenders” or “Required Term Lenders” without the written consent of each Lender directly and adversely affected thereby;
(f) change the currency of any outstanding loan without the written consent of each Lender directly and adversely affected thereby;
(g) change any provision specifying the number of Lenders or portion of the Loans or Commitments required to take any action under the Loan Documents to reduce the percentage set forth therein, 2.1.4without the written consent of all Lenders;
(h) modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(i) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(j) except as otherwise expressly provided in a Loan Document, release (i) the Borrowers from their Obligations under the Loan Documents, (ii) Guarantors from the Subsidiary Guaranty is such release would release all or 2.6substantially all of the value of the Subsidiary Guaranty or (iii) all or substantially all of the collateral under the Loan Documents, or alter its in each case without the consent of all Lenders;
(k) affect adversely the interests, rights or obligations with respect of any Agent (in its capacity as such Agent), any Issuer (in its capacity as Issuer), any Swingline Lender (in its capacity as Swingline Lender), a Cash Management Bank (in its capacity as a Cash Management Bank) or a Qualified Counterparty (in its capacity as a Qualified Counterparty), unless consented to Letters of Credit.by such Person, as the case may be; or
(bl) Ifamend, in connection with waive or otherwise modify any proposed changeterm or provision of Section 7.2.4, waiverthe definition of “Total Net Leverage Ratio”, discharge “Senior Secured Net Leverage Ratio” or termination to the definition of “Fixed Charge Coverage Ratio” (or any of the provisions their respective component definitions (as used solely in such Section but not as used in other Sections of this Agreement as contemplated by clauses (i) through (viAgreement)), inclusive, of without the first proviso to Section 10.1(a), the written consent of the Required Lenders is obtained Revolving Lenders, but without the consent of one or more of such any other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Lenders. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding any provision herein to the contrary, powers this Agreement may be amended to extend the Stated Maturity Date of (x) the Revolving Loan Commitments of Revolving Lenders that agree to such extension with respect to their Revolving Loan Commitments with the written consent of each such approving Revolving Lender, the Administrative Agent and remedies herein the applicable Borrowers (and no other Lender) and, in connection therewith, to provide for different rates of interest and fees under the Revolving Facility with respect to the portion of the Revolving Loan Commitments with a Stated Maturity Date so extended; and (y) the Term Facility with respect to Term Loan Lenders that agree to such extension with respect to their Term Loans with the written consent of each such approving Term Loan Lender, the Administrative Agent and the Company (and no other Lender) and, in connection therewith, to provide for different rates of interest and fees under the Term Facility with respect to the portion thereof with a Stated Maturity Date so extended; provided, that in each such case any such proposed extension of the Stated Maturity Date with respect to a Credit Facility shall have been offered to each Lender with Loans or Commitments under the applicable Credit Facility proposed to be extended, and if the consents of such Lenders exceed the portion of Commitments and Loans the applicable Borrowers wishes to extend, such consents shall be accepted on a pro rata basis among the applicable consenting Lenders. This paragraph shall apply to any Incremental Term Loans in the same manner as it applies to the Term Facility; provided, that any such offer may, at the Company’s option, be made to the Lenders in respect of any tranche or tranches of Incremental Term Loans and/or the Term Facility without being made to any other tranche of Incremental Term Loans or the Term Facility, as the case may be. If any Lender is a non-consenting Lender, the Company may replace such non-consenting Lender in accordance with Section 4.10. 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 consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (i) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) 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. Notwithstanding anything to the contrary contained in Section 10.1, if at any time after the Closing Date, the Agent and the Company shall have jointly identified an ambiguity, obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof (such notice to be provided are cumulative and not exclusive of any rights, powers or remedies which to the Administrative Lenders by the Agent, the Issuer or any Lender would otherwise have).
Appears in 1 contract
Samples: Credit Agreement (Ferro Corp)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date stated expiration date of any Letter of Credit beyond the Stated Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; , provided further, that in any event the Borrower shall not have the right to replace a Lender solely as a result of the exercise of such Lender’s 's rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) extend any Commitment Termination Date or modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Lender's then existing Commitment Amounts, discharge increase the aggregate amount of any Loans required to be made by a Lender pursuant to its Commitments or termination shallreduce any fees described in Article III payable to any Lender without the consent of such Lender;
(c) extend the Stated Maturity Date for any Lender's Loan, or reduce the principal amount of or rate of interest on any Lender's Loan, without the consent of each Lender such Lender; provided, however, that any vote to rescind any acceleration made pursuant to Section 8.2 or 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders;
(other than a Defaulting Lenderd) with Obligations being directly affected thereby, change the definition of "Required Lenders" or any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(ie) extend the final scheduled maturity of any Revolving Loan or Note or extend increase the Stated Expiry Date Amount of any Letter of Credit beyond unless consented to by each Issuer;
(f) release the Maturity Date, or reduce Sponsors under the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any postKeep-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Well Agreement, (v) release Guarantor from the Completion Guarantors under the Completion Guaranty, or (vi) release any Subsidiary Guarantor from discharge the Subsidiary Guaranty or release all or any material portion Lien of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms Deed of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.Trust
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination shall, without the consent of each Lender waiver which would:
(other than a Defaulting Lendera) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of modify any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood requirement hereunder that any amendment particular action be taken by all the Lenders or modification by the Required Lenders shall be effective unless consented to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause by each Lender;
(i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (iib) amend, modify or waive any provision of this Section 10.111.1, (iii) reduce the percentage specified in change the definition of “Required Lenders”, change the definition of “Net Asset Value”, “Eligible Account” or “Borrowing Base Amount” (iv) consent in each case, if the effect of such change would be to require a Lender to make or participate in a Credit Extension in an amount that is greater than such Lender would have had to make or participate in immediately prior to such amendment), increase any Commitment Amount or the assignment or transfer by Borrower Percentage of any of Lender, reduce any fees described in Article III, release any Guarantor from its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release or amend all or any material portion of the Collateral, substantially all collateral security (except, in each case, as otherwise specifically provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, thata Guaranty, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge a Security Agreement or termination shall (Aa Pledge Agreement) increase or extend the Revolving Loan Commitments of any Lender over the amount thereof then in effect Commitment Termination Date shall be made without the consent of such each Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or and each holder of a mandatory reduction in Note;
(c) extend the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender)due date for, or reduce the amount of, any scheduled repayment or prepayment of principal of or interest on any Credit Extension (Bor reduce the principal amount of or rate of interest on any Credit Extension) shall be made without the consent of the Issuerholder of that Note evidencing such Loan;
(d) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer thereof; or
(e) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
any Agent (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement such Agent’s capacity as contemplated by clauses (i) through (visuch Agent), inclusive, of the first proviso to Section 10.1(aany Issuer (in its capacity as Issuer), or the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower Swing Line Lender (in its capacity as Swing Line Lender) shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, be effective unless consented to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Agent, such Issuer or Swing Line Lender) pursuant to , as the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative any Agent, the Issuer or any Issuer, any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative any Agent, the Issuer or any Issuer, any Lender or the holder of any Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, Letters of Credit or thereof the Fee Letter, which shall be modified only in accordance with their respective terms, or as otherwise permitted under Section 9.12 hereof) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no other such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section 10.1, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Revolving Credit Extensions required to be made by a Lender pursuant to its Commitments, extend the Commitment Termination Date of Revolving Credit Extensions made (other than or participated in) by a Defaulting Lender) with Obligations being directly affected thereby, (i) Lender or extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article 3 payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which principal, interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter “Required Borrowing Base Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under the Guaranty or any Security Document to which it is a party or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses the Administrative Agent) or any Issuer (i) through (viin its capacity as Issuer), inclusiveunless consented to by the Administrative Agent or such Issuer, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactionstransactions or events. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: First Lien Exit Credit Agreement (Energy XXI Gulf Coast, Inc.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, which shall be modified only in accordance with their respective terms, or thereof as otherwise permitted under Section 9.12 hereof) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no other such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.2, discharge Section 4.3 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity of any Revolving Loan or Note Commitment Termination Date or extend the Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article 3 payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which principal, interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.1 during the continuation of an Event of Default);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release (i) either Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(f) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Agent (in its capacity as contemplated by clauses (i) through (vithe Agent), inclusive, of unless consented to by the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Agent. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: First Lien Credit Agreement (Radiant Oil & Gas Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver which would:
(a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(b) modify this Section 10.1, discharge change the definition of “Required Lenders”, increase the Revolving Commitment Amount or termination shallthe Percentage of any Lender, reduce any fees described in Article III , change the schedule of repayments of Loans provided for in Section 3.1.2, release any Guarantor from its obligations pursuant to any Guaranty (except in connection with a Permitted Asset Disposition or as otherwise permitted hereby, in which such cases no consent of any Lender is required), release all or substantially all of the collateral security (except in connection with a Permitted Asset Disposition or as otherwise permitted hereby, in which such cases no consent of any Lender is required), except as otherwise specifically provided in any Loan Document or extend the Revolving Commitment Termination Date or Maturity Date shall be made without the consent of each Lender and each holder of a Note;
(other than a Defaulting Lender) with Obligations being directly affected thereby, (ic) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Datedue date for, or reduce the rate amount of, any scheduled repayment or extend the time prepayment of payment principal of or interest on any Loan or any fee payable to a Lender (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (iion any Loan) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) be made without the consent of the Issuerholder of that Note evidencing such Loan or Lender entitled to such fee;
(d) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.the Agent qua the Agent shall be made without consent of the Agent; or
(be) If, in connection with any proposed change, waiver, discharge modify Section 2.7 or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), 8.4 shall be made without the consent of the Required Lenders is obtained but the consent Letter of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Credit Issuer. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Credit Party in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender or the holder of any Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Novamed Inc)
Waivers, Amendments, Etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by Holdings, the Borrower and each Obligor party thereto and by the Required Lenders (and the Administrative Agent has been given notice thereof and a reasonable opportunity to consult with the Borrower in respect thereof); provided, however, that (i) any such amendment, modification or waiver required to give effect to any Additional Term Loan Commitment shall not require the consent of any Lender other than, and shall require the consent of, any Lender that has agreed to provide any such Additional Term Loan Commitment and (ii) any such amendment, modification or waiver of the type set forth below shall require the consent of the Person or Persons described below for such amendment, modification or waiver:
(a) Neither this Agreement nor Unless consented to by each Lender no such amendment, modification or waiver shall be effective if it would modify any other Loan Document nor requirement hereunder that any terms hereof particular action be taken by all the Lenders or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of release Holdings from its rights and obligations under this the Guaranty or the Pledge and Security Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor that is a Material Subsidiary from its obligations under the Subsidiary Guaranty (except as otherwise provided in the Guaranty), or release all or any material portion substantially all of the Collateral, except, collateral security (except in each case, case as otherwise specifically provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of Guaranty or the Required Lenders required above, no such change, waiver, discharge Pledge and Security Agreement or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such LenderMortgage), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection Unless consented to by each Lender with any proposed change, waiver, discharge or termination respect to any Tranche of Loans or Commitments, modify any requirement hereunder that any particular action be taken by all Lenders with respect to such Tranche of Loans or Commitments; provided that the foregoing shall not apply to the combination of the provisions Initial Term Loans and Delayed Draw Term Loans into a single tranche of this Agreement as contemplated by clauses (i) through (vi), inclusive, term loans at any time after the funding of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a)Delayed Draw Term Loans.
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Lender Consent Letter (Merrill Corp)
Waivers, Amendments, Etc. (a) Neither This Agreement is an amendment and restatement of, and replaces and supersedes, the Existing Credit Agreement in its entirety; provided, however, that no right, interest, claim or cause of action of any kind of the lender under the Existing Credit Agreement shall in any way be released, modified, compromised or waived by virtue of this Agreement nor any superseding and replacing the Existing Credit Agreement, and nothing in this Agreement or the other Loan Documents is intended to novate or discharge the indebtedness of the Borrower or the other Obligors under the Existing Credit Agreement; provided however, upon the satisfaction of all conditions set forth in Section 6.1, Bank of America shall terminate its Lien on all shares of the Capital Stock of the Borrower under Pledge Agreements under the Existing Credit Agreement that were previously delivered by shareholders of the Borrower;
(b) The provisions of this Agreement and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver which would:
(i) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(ii) modify this Section 11.1, discharge change the definitions of "Required Lenders", "Restricted Payment Tests," "Total Commitment", "Letter of Credit Availability", or termination shall"Commitment Amount", increase the Percentage of any Lender, reduce any fees described in Article III, amend Section 6.1.15 or 8.2.6, release any collateral security including any Guaranty, except as otherwise specifically provided in any Loan Document, or extend the Stated Maturity Date or any Commitment Termination Date, shall be made without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.;
Appears in 1 contract
Samples: Credit Agreement (Bargo Energy Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof or thereof (other than Letters of Credit and the Agents' Fee Letter (which documents may be changedamended or otherwise modified in accordance with the terms thereof)) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders, ; provided that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section 11.1 without the consent of each Lender all Lenders (other than except such amendments as may be required for the purpose (but solely for the purpose) of effecting an increase of a Defaulting LenderCommitment Amount or the inclusion of a new commitment pursuant to clause (g) with Obligations being directly affected thereby, below);
(ib) extend increase the final scheduled maturity aggregate amount of any Revolving Loan Credit Extensions required to be made by a Lender pursuant to a Commitment (it being understood that waivers or Note modifications (x) of conditions precedent, covenants, Defaults or extend Events of Default or (y) of a mandatory reduction in the Stated Expiry Date Commitment Amount relating to such Commitment shall not constitute an increase of any Letter the aggregate amount of Credit beyond the Maturity DateExtensions that may be required to be made by such Lender pursuant to such Commitment), extend any final Commitment Termination Date or reduce the rate or extend the time of payment of interest (except any fees described in connection with a waiver of applicability of Article III payable to any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof Lender (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in the fees payable under Article III), in each case without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender's Loan, or, except for the waiver of any applicable post default increase in interest rates or fees, reduce the principal amount of, rate of interest or fees on any Loan or Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in the rate of interest or fees for the purposes of this clause (i), c) so long as the primary principal purpose of the respective amendments such amendment or modifications to the financial definitions modification was not to reduce the rate of interest or fees)), or extend the date on which interest or fees are payable hereunderin respect of such Loan or Reimbursement Obligation, in each case, without the consent of the Lender which has made such Loan or, in the case of a Reimbursement Obligation, the respective Issuer owed, and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of "Required Lenders" (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 extensions of Term Loans and Revolving Loan Commitments are included on the Closing Date) or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, (i) permit the assignment by the Borrower of its Obligations under the Loan Documents, (ii) release Holdings from its Obligations under the Holdings Guaranty, Mergerco from its Obligations under the Mergerco Guaranty or any Subsidiary Guarantor from its Obligations under the Subsidiary Guaranty (other than in connection with a Disposition of all or substantially all of the Capital Stock of such Subsidiary Guarantor in a transaction permitted by Section 7.2.11) or (iii) release all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; provided that the Required Lenders may at any time consent to the release of any Subsidiary Guarantor that (A) accounted for no more than 15% of consolidated revenues of Holdings and its Subsidiaries for the four consecutive Fiscal Quarters of Holdings ending on December 31, 2001 or if more recent financial information is (or is required to be) available, the last day of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agent and (B) has assets which represent no more than 15% of the consolidated assets of Holdings and its Subsidiaries as of December 31, 2001, or if more recent financial information is (or is required to be) available, the last day of the last Fiscal Quarter of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agent;
(f) amend, modify or waive any provision clause (b) of this Section 10.1, (iii) reduce the percentage specified 3.1.1 in the definition of Required Lenders, (iv) consent a manner adverse to the assignment or transfer by Borrower holders of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments unless such amendment, modification or waiver shall have been consented to by the holders of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of at least a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase majority of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or Commitments;
(Bg) without the consent of the Issuer, amend, modify or waive any provision the provisions of Sections 2.1.2clause (a)(i), 2.1.4(c), (d), (e), (f), (g) or 2.6, (h) of Section 3.1.1 or alter its rights or obligations with respect to Letters of Credit.
clause (b) Ifof Section 3.1.2, in connection with any proposed changeunless such amendment, waiver, discharge modification or termination waiver shall have been consented to any by the holders of at least a majority of the provisions aggregate amount of Loans outstanding under the Tranche or Tranches adversely affected by such modification (it being agreed that, (x) in the event consented to by the Required Lenders, any increase in a Commitment Amount or the inclusion of another commitment to extend credit under this Agreement shall not be deemed for purposes of this Agreement as contemplated by clauses clause (ig) through to constitute a modification that would adversely affect a Tranche and (vi), inclusive, of the first proviso to Section 10.1(a), the consent of y) the Required Lenders is obtained but may waive, in whole or in part, any such prepayment, repayment or commitment reduction, as the consent of one or more of such other Lenders whose consent is case may be, required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to any clause of Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge 3.1.1 or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a)3.
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Paying Agent, the Issuer Issuing Banks or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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 Paying Agent, privilege the Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.17 or by an assignee pursuant to Section 8.06, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative AgentBorrower and the Required Lenders and either acknowledged by or notified to the Paying Agent or (ii) in the case of a Letter of Credit, pursuant to an agreement or agreements entered into by the Issuer Borrower and the applicable Issuing Bank; provided, however, that no such agreement shall (A) change the principal amount of any Advance or Letter of Credit Obligation, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Section 2.17), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender (other than as provided in Section 2.17 or 2.19) or reduce or extend the date for payment of the Commitment Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or (C) amend or modify the second proviso of Section 2.01(c)(ii), or the provisions of Section 2.13, this Section 8.01(b) or Section 8.05 or the definition of the term “Required Lenders”, without the prior written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Paying Agent or the Issuing Banks hereunder without the prior written consent of the Paying Agent or the Issuing Banks, respectively. 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 consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other Loan Document shallthan Defaulting Lenders), except as that (x) the Commitment of any Defaulting Lender may not be otherwise stated in increased or extended without the consent of such waiver Lender and (y) any waiver, amendment or approval, be applicable to subsequent transactions. No waiver modification requiring the consent of all Lenders or approval hereunder each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require any similar or dissimilar waiver or approval thereafter the consent of such Defaulting Lender.
(c) Notwithstanding anything to be granted hereunder. The rights, powers and remedies the contrary contained herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative AgentDocument, the Issuer or authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower 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 Paying Agent in accordance with Article VI for the benefit of all the Lenders and the Issuing Banks; provided, however, that the foregoing shall not prohibit (a) the Paying Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Paying 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) hereunder and under the other Loan Documents, (c) any Lender would from exercising setoff rights in accordance with Section 8.04 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any debtor relief law; and provided, further, that if at any time there is no Person acting as Paying Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise haveascribed to the Paying Agent pursuant to Article VI and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than a Fee Letter, which shall be modified only in accordance with its terms) may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto New Borrower and the Required Lenders; provided, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Loans held by a Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) or extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness), the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, or alter its rights or obligations with respect to Letters of Credit.interest accruing under Section 3.2.2);
(bd) If, in connection make any change to the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but holding more than 90% of the consent aggregate amount of one outstanding Loans, release (i) either any Borrower from its Obligations under the Loan Documents or more any Subsidiary Guarantor from its obligations under a Guaranty; provided that a Subsidiary Guarantor shall automatically be released from its obligations under a Guaranty in the event that the Capital Securities of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as Subsidiary Guarantor are Disposed of in a transaction permitted under Section 7.2.2 or (ii) all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower shall not have the right to replace a Lender solely as a result substantially all of the exercise of such Lender’s rights (and collateral under the withholding of any required consent by such Lender) pursuant to the second proviso to Section 10.1(a).Loan Documents; or
(cf) affect adversely the interests, rights or obligations of the Administrative Agent (in its capacity as the Administrative Agent) unless consented to by the Administrative Agent. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Credit Party in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, Letters of Credit, the Subsidiary Guaranty, Issuer Documents or thereof Arrangement Letters, which shall be modified only in accordance with their respective terms) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity of any Revolving Loan Commitment Termination Date of Credit Extensions made (or Note participated in) by a Lender or extend the Stated Expiry Maturity Date of for any Letter of Credit beyond Lender’s Loan past the Final Maturity Date, in each case without the consent of such Lender;
(c) reduce (by way of forgiveness) the principal amount of or reduce the rate of interest on any Lender’s Loan, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable in respect of such Lender’s Loans, in each case without the consent of such Lender (provided, that the vote of Required Lenders shall be sufficient to waive the payment, or reduce the rate or extend the time of payment increased portion, of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that accruing under Section 3.2.2 and any amendment or modification to of defined terms used in the financial definitions ratios in this Agreement shall not constitute a reduction in any the rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the unless it results in an actual reduction in such interest or fees payable hereunderfees), ;
(ii) amend, modify or waive any provision of this Section 10.1, (iiid) reduce the percentage specified set forth in the definition of “Required Lenders, ” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(ive) consent to increase the assignment or transfer by Borrower Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its rights and Obligations under the Loan Documents or any one or more Subsidiary Guarantors from their respective obligations under this Agreement, (v) release Guarantor from all or substantially all of the Guaranty, or (vi) release any Subsidiary Guarantor from value of the Subsidiary Guaranty or release (ii) all or any material portion substantially all of the Collateral, exceptcollateral under the Loan Documents, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender all Lenders; or
(it being understood that waivers or modifications of conditions precedentg) affect adversely the interests, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vithe Administrative Agent), inclusive, of any Issuer (in its capacity as Issuer) or the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long Swing Line Lender (in its capacity as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Swing Line Lender) pursuant unless consented to by the second proviso to Section 10.1(a).
(c) Administrative Agent, such Issuer or the Swing Line Lender, as the case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Kansas City Southern De Mexico, S.A. De C.V.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative AgentAgents, the Issuer Paying Agent or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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 Agents, privilege the Paying Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.16 or by an Eligible Assignee pursuant to Section 8.03, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative AgentBorrower and the Required Lenders or (ii) in the case of the Guarantee Agreement, pursuant to an agreement or agreements in writing entered into by the Issuer Guarantors and the Paying Agent and consented to by the Required Lenders; PROVIDED, HOWEVER, that no such agreement shall (A) change the principal amount of any Advance, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Sections 2.05 and 2.16), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender or reduce or extend the date for payment of the Facility Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or any other Loan Document shall(C) amend or modify the provisions of this Section 8.01(b) or Section 8.05 or the definition of the term "Required Lenders" without the prior written consent of each Lender; and PROVIDED FURTHER that no such agreement shall amend, except as may be modify or otherwise stated in such waiver affect the rights or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive duties of any rights, powers or remedies which the Administrative Agents or the Paying Agent hereunder without the prior written consent of the Administrative Agents or the Paying Agent, the Issuer or any Lender would otherwise haverespectively.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, Letters of Credit, Issuer Documents or thereof a Fee Letter, which shall be modified only in accordance with their respective terms) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity of any Revolving Loan Commitment Termination Date of Credit Extensions made (or Note participated in) by a Lender or extend the Stated Expiry Maturity Date of for any Letter of Credit beyond Lender’s Loan past the Final Maturity Date, in each case without the consent of such Lender;
(c) reduce (by way of forgiveness) the principal amount of or reduce the rate of interest on any Lender’s Loan, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable in respect of such Lender’s Loans, in each case without the consent of such Lender (provided, that the vote of Required Lenders shall be sufficient to waive the payment, or reduce the rate or extend the time of payment increased portion, of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that accruing under Section 3.2.2 and any amendment or modification to of defined terms used in the financial definitions ratios in this Agreement shall not constitute a reduction in any the rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the unless it results in an actual reduction in such interest or fees payable hereunderfees), ;
(ii) amend, modify or waive any provision of this Section 10.1, (iiid) reduce the percentage specified set forth in the definition of “Required Lenders, (iv) consent to the assignment ” or transfer modify any requirement hereunder that any particular action be taken by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Lender Letter of Credit;
(it being understood that waivers f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or modifications of conditions precedent, covenants, Defaults any Guarantor from its obligations under a Guaranty or Events of Default (ii) all or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase substantially all of the Revolving collateral under the Loan Commitment of any LenderDocuments, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) each case without the consent of all Lenders;
(g) affect adversely the Issuerinterests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect of the Administrative Agent (in its capacity as the Administrative Agent), any Issuer (in its capacity as Issuer), or the Swing Line Lender (in its capacity as Swing Line Lender) unless consented to Letters of Credit.by the Administrative Agent or such Issuer, as the case may be; or
(bh) If, in connection with any proposed change, waiver, discharge or termination to any modify the definition of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), Eligible Assignee without the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as holding at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower shall not have the right to replace a Lender solely as a result least 66 2/3% of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 10.1(a).
(c) Total Exposure Amount. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Kansas City Southern De Mexico, S.A. De C.V.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders, Lenders except as otherwise provided herein; provided that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date for any Lender's Loan (including by way of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-a payment default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (iwith respect thereto), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers any vote to rescind any acceleration made pursuant to Section 9.2 and Section 9.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(c) reduce the principal amount of or modifications rate of conditions precedentinterest on any Lender's Loan, covenants, Defaults reduce any fees described in Article III payable to any Lender or Events of Default extend the date on which interest or fees are payable (including by way of a mandatory reduction waiver of a payment default with respect thereto) in respect of such Xxxxxx's Loans, in each case without the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment consent of such Lender;
(d) reduce the percentage set forth in the definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) either Borrower from its Obligations under the Loan Documents, Parent from its obligations under the Parent Guaranty and Pledge Agreement, Holdings from its obligations under the Holdings Guaranty and Pledge Agreement, USP International from its obligations under the USP International Guaranty and Pledge Agreement, or any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty (except as otherwise provided in Section 5.3 herein), or (Bii) all or any material portion all the Collateral under the Loan Documents, in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations of the Administrative Agent (in its capacity as the Administrative Agent) or the Issuer (in its capacity as Issuer), unless consented to by the Administrative Agent or the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of as the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (United Surgical Partners International Inc)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, extend the Revolving Loan Commitment Termination Date of Credit Extensions made (other than or participated in) by a Defaulting Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender) with Obligations being directly affected thereby, ;
(ic) extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateLender=s Loan, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or rate of interest on any Lender's Loan or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of date on which interest or fees for purposes are payable in respect of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptsuch Lender's Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Sections 8.2 and 8.3 of conditions precedent, covenants, Defaults or Events amounts owing with respect to the Loans and other Obligations shall only require the vote of Default or of a mandatory reduction the Required Lenders);
(d) reduce the percentage set forth in the Revolving definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer or increase the amount of any Loan Commitment Amount shall not constitute an increase Note Guaranty unless consented to by the Loan Note Guarantor;
(f) except as otherwise expressly provided in a Loan Document or in connection with and to effectuate permitted asset sales, release (i) any Borrower from its Obligations under the Loan Documents or any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty or (ii) all or substantially all of the Revolving collateral under the Loan Commitment Documents, in each case without the consent of all Lenders;
(g) change any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment terms of such Lender), or (B) Section 2.3.2 without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Swing Line Lender;
(bh) If, in connection with any proposed change, waiver, discharge or termination to change any of the provisions terms of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), or Sections 2.3.3 or 2.10 without the consent of the Required Lenders is obtained but Administrative Agent; or
(i) affect adversely the consent of one interests, rights or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower shall not have the right to replace a Lender solely as a result obligations of the exercise of such Administrative Agent (in its capacity as the Administrative Agent), the Swing Line Lender (in its capacity as Swing Line Lender’s rights ), the Other Currency Lender (and in its capacity as Other Currency Lender), the withholding of any required consent Issuer (in its capacity as Issuer), or the Loan Note Guarantor (in its capacity as Loan Note Guarantor), unless consented to by such the Administrative Agent, the Swing Line Lender) pursuant to , the second proviso to Section 10.1(a).
(c) Other Currency Lender, the Issuer or the Loan Note Guarantor, as the case may be. No failure or delay on the part of the Administrative Agent, the Issuer Issuer, the Loan Note Guarantor or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer Issuer, the Loan Note Guarantor or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) extend any Loan Commitment Termination Date or modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Lender’s then existing Loan Commitment Amounts, discharge increase the aggregate amount of any Loans required to be made by a Lender pursuant to its Loan Commitments or termination shallreduce any fees described in Article III payable to any Lender without the consent of such affected Lender;
(c) extend the Stated Maturity Date for any Lender’s Loan, or reduce the principal amount of or rate of interest on any Lender’s Loan, without the consent of each Lender such Lender; provided, however, that any vote to rescind any acceleration made pursuant to Section 8.2 or 8.3 of amounts owing with respect to the Loans and other Obligations shall require the consent of the Required Lenders;
(d) change the definition of “Required Lenders” or any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) discharge the Lien of any Deed of Trust, release the Guarantors under the Guaranty other than a Defaulting Lenderin accordance with the terms thereof, or release any material portion of the other security interests granted pursuant to the Loan Documents, in each case, without the consent of all Lenders as expressly provided herein or therein;
(f) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend increase the Stated Expiry Date Amount of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except unless consented to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer; or
(g) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a)Administrative Agent, the consent of Issuer or any Lender hereunder, unless consented to by the Required Lenders is obtained but Administrative Agent, the consent of one Issuer or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) . No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Loan Agreement (Tropicana Las Vegas Hotel & Casino, Inc.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of the Administrative Agent and each Lender (other than a Defaulting Lender) with Obligations being directly and adversely affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note (other than pursuant to Section 3.1(b) hereof) or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) ), or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor or the General Partner from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 7.1.7 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement, or (vii) amend any provision of this Agreement which provides for pro-rata contributions by or pro-rata payment to such affected Lender; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments Commitment Amounts of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment Amount of any Lender, and that an increase in the available portion of any Revolving Loan Commitment Amount of any Lender shall not constitute an increase of the Revolving Loan Commitment Amount of such Lender, and that any payments made pursuant to Sections 2.6 and 2.9 shall not constitute an increase of the Revolving Loan Commitment Amount of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Cole Credit Property Trust II Inc)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof or thereof (other than Rate Protection Agreements, under which amendments, modifications and waivers may be changedeffected by the Applicable Obligor and Applicable Lender, each a party thereto) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, discharge extend any final Commitment Termination Date or termination shallreduce any fees described in Article III payable to any Lender without the consent of such Lender;
(c) extend any scheduled date of payment of principal for any Lender's Loan, or reduce the principal amount of, rate of interest or fees on any Loan or Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor), or extend the scheduled date on which interest or fees are payable in respect of such Loan or Reimbursement Obligation, in each case, without the consent of each the Lender (other than which has made such Loan or, in the case of a Defaulting Lender) with Obligations being directly affected therebyReimbursement Obligation, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Dateapplicable Issuer owed, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any amendment or modification vote to rescind any acceleration made pursuant to Sections 8.2 and 8.3 of amounts owing with respect to the financial definitions in this Agreement Loans and other Obligations shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as only require the primary purpose vote of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunderRequired Lenders), ;
(ii) amend, modify or waive any provision of this Section 10.1, (iiid) reduce the percentage specified set forth in the definition of "Required Lenders, " or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(ive) consent to except as otherwise expressly provided in a Loan Document (including the assignment sale or transfer by of Accounts and other related assets in accordance with the Permitted Receivables Transaction), release (i) the Borrower of any of from its rights and obligations Obligations under this Agreement, (v) release Guarantor from the Guaranty, Loan Documents or (vi) release any Subsidiary Guarantor from its Obligations under the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each caseGuaranty, as provided in Section 7.1.9 or applicable (other than in connection with a Disposition of all or refinancing that is otherwise substantially all of the Capital Securities of a Subsidiary Guarantor in a transaction permitted pursuant to by Section 7.2.10 or 7.2.11) or (ii) all or substantially all of the terms of this Agreement; provided further, thatcollateral under the Loan Documents, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect each case without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.Lenders;
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 7.1.22 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided provided, further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of CreditCredit or (C) without the consent of the Non-Defaulting Lenders having or holding at least sixty-seven percent (67%) of the sum (without duplication) of the aggregate outstanding principal amount of the Revolving Loans, the aggregate amount of the Letter of Credit Outstandings and the unfunded amount of the Revolving Loan Commitment Amount, taken as a whole, amend, modify or waive the proviso set forth in the definition of “Available Commitment.”
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided provided, further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver which would: (a) modify any requirement hereunder that any particular action be taken by all the Lenders or by each Lender shall be effective unless consented to by each Lender; (b) modify the first sentence of Section 4.8, discharge modify Section 4.9 or termination shallthis Section 10.1, change the definition of “Required Lenders”, reduce any fees described in Article III or elsewhere in any other Loan Document, or, except in the manner set forth in Section 2.10, extend the Maturity Date, shall be made without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly adversely affected thereby; (c) except in the manner set forth in Section 2.10, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Datedue date for, or reduce the rate amount of, any scheduled repayment or extend the time prepayment of payment principal of or interest on any Loan or LC Disbursement (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest on any Loan or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (iiLC Disbursement) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to shall be made without the consent of the Required Lenders required aboveLender which made such Loan or is otherwise adversely affected thereby; (d) affect adversely the interests, no such change, waiver, discharge rights or termination shall (A) increase the Revolving Loan Commitments obligations of any Lender over the amount thereof then in effect Agent as an Agent shall be made without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), Agent or (Be) amend Section 2.11(c) to permit any Letter of Credit to expire after the Maturity Date without the consent of the Issuerapplicable Issuing Bank; provided, amendfurther, modify that no such amendment, modification or waive waiver which would either increase any provision Commitment, the Total Commitment or the Percentage of Sections 2.1.2, 2.1.4any Lender, or 2.6modify the rights, or alter its rights duties or obligations with respect to Letters of Credit.
(b) Ifany Agent or Issuing Bank, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), shall be effective without the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Agent or such Issuing Bank, as applicable. No failure or delay on the part of the Administrative Agent, the Issuer any Lender or any Lender Issuing Bank in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, ; nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer any Lender or any Lender Issuing Bank under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Cimarex Energy Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than the Fee Letter, which shall be modified only in accordance with its terms) may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided that, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify Section 4.4, discharge Section 4.5 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Loans required to be made by a Lender pursuant to its Commitments, extend the Commitment Termination Date of Loans made (other than or participated in) by a Defaulting Lender) with Obligations being directly affected thereby, (i) Lender or extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness), the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuervote of Required Lenders shall be sufficient to waive the payment, or reduce the increased portion, of interest accruing under Section 3.2.2 and such waiver shall not constitute a reduction of the rate of interest hereunder);
(d) reduce the percentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release the Borrower from its Obligations under the Loan Documents or any Subsidiary Guarantor from its obligations under the Guaranty, in each case without the consent of all Lenders;
(f) amend, modify or waive any provision in the Exchange Note Indenture that requires (or would, if any Exchange Notes were outstanding, require) the approval of Sections 2.1.2all holders of Exchange Notes, 2.1.4in each case without the consent of all Lenders;
(g) restrict the right of any Lender to exchange Loans for Exchange Notes or amend the rate of such exchange or amend the terms of the Exchange Notes in any manner that requires (or would, or 2.6if the Exchange Notes were outstanding, or alter its require) the approval of all holders of Exchange Notes, in each case without the consent of each Lender directly affected thereby; or
(h) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated the Administrative Agent) unless consented to by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Administrative Agent. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Loan Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Loan Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding anything to the contrary contained in Section 10.1, powers if within sixty days following the Closing Date, the Administrative Agent and remedies herein the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial 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 such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly provided are cumulative and if the same is not exclusive objected to in writing by the Required Lenders within five Business Days following receipt of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise havenotice thereof.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended or thereof may be changedmodified, waived, discharged if such amendment or terminated unless such change, waiver, discharge or termination modification is in writing signed and consented to by the respective parties Company or the Obligor(s) party thereto (as the case may be) and the Required Lenders; and the provisions of this Agreement may be waived by the Required Lenders or by the Agent acting with the consent of the Required Lenders; provided, provided however, that no such changeamendment, waivermodification, discharge or termination shallwaiver which would:
(i) modify this Section 12.1, change the definition of "Required Lenders", increase any Revolving Commitment Amount, decrease the Availability Reserve or modify any requirement hereunder that any particular action be taken by all the Lenders, or the Required Lenders shall be effective unless consented to by each Lender;
(ii) increase the Percentage of any Lender, reduce any fees described in Article III payable to any Lender, or extend any Lender's Commitment Termination Date shall be made without the consent of each Lender such Lender;
(other than a Defaulting Lender) with Obligations being directly affected thereby, (iiii) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Datedue date for, or reduce the rate amount of, any scheduled repayment of principal of or extend the time of payment of interest (except in connection with a waiver of applicability of on any post-default increase in interest rates) Loan or fees thereon any Reimbursement Obligation, or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest on any Loan or fees for purposes reduce the amount of this clause (i)any Reimbursement Obligation, so long shall be made without the consent of the Lender which made such Loan or participated in such Letter of Credit, or each Lender which issued or is participating in the Letter of Credit with respect to which such Reimbursement Obligation is owed, as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, case may be;
(iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreementrelease all, (v) release Guarantor from the Guarantysubstantially all, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or Collateral (except for releases in connection with a Disposition dispositions of assets which are permitted hereunder or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving under any Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any LenderDocument, and that an increase in releases which are required by the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (BCollateral Documents) without the consent of Lenders holding at least 100% of the Issuerthen aggregate outstanding principal amount of the Revolving Credit Outstandings or, amendif no such principal amount is then outstanding, modify or waive any provision Lenders having at least 100% of Sections 2.1.2the Revolving Commitments;
(v) affect adversely the interests, 2.1.4rights, or 2.6obligations of the Agent qua Agent, shall be made without the consent of the Agent; or
(vi) modify any Letter of Credit or alter its rights or obligations with respect to Letters any Revolving L/C Request without the consent of Creditthe relevant Issuer Bank.
(b) IfNotwithstanding the foregoing, during the continuance of an Event of Cash Dominion, the Agent may, at any time thereafter, in connection its sole and absolute discretion, continue to make Revolving Loans and Swingline Loans and instruct the applicable Issuer Bank to issue Letters of Credit in accordance with any proposed change, waiver, discharge or termination and subject to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a)7.4.
(c) No failure or delay on the part of the Administrative Agent, any Lender, any Issuer Bank, or the Issuer or holder of any Lender of the Obligations in exercising any power, privilege right, or right remedy under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege right, or right remedy preclude any other or further exercise thereof or the exercise of any other power, privilege right, or rightremedy. No notice to or demand on the Borrower Company or any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, any Lender, any Issuer Bank, or the Issuer or holder of any Lender of the Obligations under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights.
(d) Each of the Parent Guarantor and the Company hereby waives demand, powers presentment for payment, protest, notice of protest, notice of acceleration (except as otherwise provided herein), or of intention to accelerate the maturity of any of the Loans, diligence in collecting, the bringing of any suit against any party and remedies herein any notice of or defense on account of any extensions, renewals, partial payments, or any changes in any of the terms, provisions, and covenants of this Agreement, or any other Loan Document, or any releases or substitutions of any security, or any delay, indulgence, or other act of any trustee or any other Person under or in connection with this Agreement, or any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers whether before or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveafter maturity.
Appears in 1 contract
Samples: Post Petition Credit Agreement (Kaiser Aluminum Corp)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor (not including, for any purposes of this Section 10.1, the Fee Letter or any Rate Protection Agreement, each of which shall be governed by the terms hereof thereof) may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, extend the final Commitment Termination Date of Credit Extensions made (or participated in) by a Lender or extend the final Stated Maturity Date for any Lender’s Loan, in each case without the consent of such Lender directly affected thereby (it being agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other than a Defaulting Obligations shall only require the vote of the Required Lenders);
(c) reduce the principal amount of or rate of interest on any Lender) with Obligations being ’s Loan or Reimbursement Obligation owing to it, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable in respect of such Lender’s Loans, in each case without the consent of such Lender directly affected thereby, ;
(d) reduce the percentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by a specific percentage of Lenders (whether it be Required Lenders or all Lenders) without the consent of all Lenders;
(i) extend increase the final scheduled maturity Stated Amount of any Revolving Loan or Note or Letter of Credit unless consented to by the Issuer of such Letter of Credit, (ii) extend the Stated Expiry Date of any Subfacility Letter of Credit beyond the Maturity DateCommitment Termination Date without compliance with all requirements of the proviso to Section 2.1.2(a), without the consent of all of the Lenders deemed to participate in such Letter of Credit or (iii) extend the Stated Expiry Date of any Standby Letter of Credit beyond the Commitment Termination Date without compliance with all requirements of the proviso to Section 2.1.3(a), without the consent of all of the Lenders deemed to participate in such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, (i) release the Borrowers from all of their Obligations under the Loan Documents, (ii) release parties from the Guarantee Agreement comprising all or substantially all of the value represented by the Guarantee Agreement or all or substantially all of the Collateral from the Liens under the Loan Documents, or reduce all or substantially all of the rate or extend the time of payment of interest Borrowing Base Assets (except as permitted in connection accordance with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (iSection 7.2.11), so long as or (iii) increase the primary purpose five (5%) percent of the respective amendments Borrowing Base cap on Special Agent Advances contained in Section 2.1.1 or modifications Section 10.20, in each case, with respect to the financial definitions was not to reduce the interest or fees payable hereundereach of subclauses(i), (ii) amendand (iii), modify without the consent of all Lenders;
(i) increase the advance percentage rates constituting part of the Borrowing Base, (ii) increase the Revolving Loan Commitment Amount or waive any provision the Standby Letter of this Credit Commitment Amount or (iii) decrease the amount of Excess Availability required under Section 10.17.2.4(a) below $75,000,000 (it being understood and agreed by the Lenders that notwithstanding anything to the contrary contained herein, the Agent, in its sole discretion, with the consent of Required Lenders, shall have the right to decrease the amount of Excess Availability required under Section 7.2.4(a) to $75,000,000), or (iv) increase the advance percentage rates constituting part of the Borrowing Base, in each case with respect to each of subclauses(i), (ii), (iii) reduce the percentage specified in the definition of Required Lenders, and (iv) of this Section 10.1(g), without the consent to of all Lenders;
(h) affect adversely the assignment interests, rights or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the CollateralAgent (in its capacity as the Agent) or the Issuer (in its capacity as Issuer), exceptunless consented to by the Agent or the Issuer, as the case may be; or
(i) change the relative priority as set forth in Section 8.4, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Lenders. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. All rights and remedies provided for in this Agreement are cumulative, and not exclusive of rights and remedies provided by law. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders, provided ; PROVIDED that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender's Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to SECTION 8.2 and SECTION 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or rate of interest on any Lender's Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of ARTICLE III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)'s Loans, or (B) in each case without the consent of such Lender;
(d) reduce the Issuerpercentage set forth in the definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, amendrelease (i) either Borrower from its Obligations under the Loan Documents, modify Parent from its obligations under the Parent Guaranty and Pledge Agreement, Holdings from its obligations under the Holdings Guaranty and Pledge Agreement or waive any provision of Sections 2.1.2, 2.1.4Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, or 2.6(ii) all or substantially all of the collateral security under the Loan Documents, or alter its in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses the Administrative Agent) or any Issuer (i) through (viin its capacity as Issuer), inclusiveunless consented to by the Administrative Agent or such Issuer, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (United Surgical Partners Holdings Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof or thereof (other than Rate Protection Agreements, Letters of Credit and the Fee Letter (which documents may be changedamended or otherwise modified in accordance with their terms)) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders (although additional parties may be added to (and annexes may be modified to reflect such additions), and Subsidiaries of the Borrower may be released from, the Subsidiary Guaranty and the Security Documents in accordance with the provisions hereof and thereof without the consent of the other Obligors party thereto or the Required Lenders), provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) (with Obligations being directly affected therebyin the case of following clause (i)), (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a the waiver of applicability of any post-default increase in interest rates) or fees thereon ), or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in any the rate of interest or fees for the purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) release all or substantially all of the Collateral (except as expressly provided in the Loan Documents) under all the Security Documents or release all or substantially all of the Subsidiary Guarantors (except as expressly provided in the Loan Documents) under the Subsidiary Guaranty, (iii) amend, modify or waive any provision of this Section 10.111.1 (except for technical amendments with respect to additional extensions of credit pursuant to this Agreement which afford the protections to such additional extensions of credit of the type provided to the Term Loans and the Revolving Loan Commitments on the Effective Date), (iiiiv) reduce the percentage specified in the definition of Required Lenders (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 extensions of Term Loans and Revolving Loan Commitments are included on the Effective Date) or (ivv) consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, that no such change, waiver, discharge or termination shall (A1) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Total Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B2) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, Article IV or alter its rights or obligations with respect to Letters of Credit.
, (b3) Ifwithout the consent of the Swingline Lender, alter the Swingline Lender’s rights or obligations with respect to Swingline Loans, (4) without the consent of the Administrative Agent, amend, modify or waive any provision of Article X or any other provision as same relates to the rights or obligations of the Administrative Agent, or (5) without the consent of the Collateral Agent, amend, modify or waive any provision relating to the rights or obligations of the Collateral Agent. Notwithstanding the foregoing provisions of this Section 11.1, the Administrative Agent and the Borrower may, in connection with implementation or maintenance of any proposed changeCP Program, waiverConduit Program or MTN Program, discharge without the consent of any Lender, enter into any amendment, supplement or termination other modification to any Enhancement Letters of Credit or Enhancement Letter of Credit Application and Agreement, in form and substance satisfactory to the provisions of Administrative Agent, to cure any ambiguity or to correct or supplement any provision in this Agreement as contemplated by clauses or any other Loan Document that may be inconsistent with any provision applicable to such CP Program, Conduit Program or MTN Program; provided, however, that (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of any such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower action shall not have an adverse effect on the right to replace a Lender solely as a result interests of the exercise of such Lender’s rights Lenders and (and the withholding ii) a copy of any required consent by such Lender) pursuant amendment, supplement or other modification shall be furnished to the second proviso Lenders or the Issuer in accordance with the notice provisions hereof not later than five days prior to Section 10.1(a).
(c) the execution thereof by the Administrative Agent. No failure or delay on the part of the Administrative Agent, the Issuer or Issuer, any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or Issuer, any Lender or the holder of any Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by Holdings, Intermediate Holdings, the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, extend the final Commitment Termination Date of Credit Extensions made (other than or participated in) by a Defaulting Lender or reduce any fees described in Article 3 payable to any Lender without the consent of such Lender) with Obligations being directly affected thereby, ;
(ic) extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note Lender’s Loan, or extend the Stated Expiry Date of any a Letter of Credit beyond past the fifth Business Day prior to the Stated Maturity DateDate for the Revolving Loans, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof of, rate of interest or fees on any Loan or Reimbursement Obligations (except to which shall in each case include the extent repaid in cash) conversion of all or extend any part of the time for payment thereof (it being understood that Obligations into equity of any Obligor and which shall not include an amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of or to Section 1.4), or extend the date on which interest or fees for purposes are payable in respect of this clause such Loan or Reimbursement Obligation, or extend the date of any scheduled installment payment of principal due with respect to the Term Loans, in each case, without the consent of the Lender which has made such Loan or issued such Letter of Credit or, in the case of a Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release (i)) Holdings, so long as Intermediate Holdings or any Borrower from its Obligations under the primary purpose Loan Documents or any Guarantor from its Obligations under a Guaranty or (ii) all or substantially all of the respective amendments or modifications to collateral under the financial definitions was not to reduce Loan Documents, in each case without the interest or fees payable hereunder), consent of all Lenders;
(iif) (i) amend, modify or waive clause (b) of Section 3.1.1 or (ii) have the effect (either immediately or at some later time) of enabling any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent Borrower to satisfy a condition precedent to the assignment making of a Revolving Loan or transfer the issuance of a Letter of Credit unless such amendment, modification or waiver shall have been consented to by Borrower the holders of any at least 51% of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of the applicable Tranche;
(g) amend, modify or waive the provisions of clause (a)(i) or (c) of Section 3.1.1 or clause (b) of Section 3.1.2, or effect any Lender over amendment, modification or waiver that by its terms adversely affects the rights of Lenders participating in any Tranche differently from those of other Lenders participating in other Tranches, unless such amendment, modification or waiver shall have been consented to by the holders of at least 51% of the aggregate amount thereof then of Loans outstanding under the Tranche or Tranches affected by such modification or, in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or case of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase modification affecting any of the Revolving Loan Commitment of any LenderCommitments, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase Lenders holding at least 51% of the Revolving Loan Commitment Commitments of such Lender), the applicable Tranche;
(h) change any of the terms of clause (d) of Section 2.1.4 or (B) Section 2.3.2 without the consent of the IssuerSwing Line Lender; or
(i) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses the Administrative Agent) or any Issuer (i) through (viin its capacity as an Issuer), inclusiveunless consented to by the Administrative Agent or such Issuer, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the any Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the any Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 11.1, powers the Administrative Agent shall have primary responsibility, together with Holdings, Intermediate Holdings and remedies herein the Borrowers, in the negotiation, preparation and documentation relating to any amendment, modification or in waiver under this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
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Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders; PROVIDED, provided HOWEVER, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) extend any Commitment Termination Date or any interest payment date or the date fees are payable under either Facility without the consent of each Lender all adversely affected Lenders under that Facility or modify this SECTION
12.1 without the consent of all Lenders;
(b) increase any Lender's Percentage of any Commitment Amount (in the case of other than an increase in a Defaulting Lender) 's applicable Percentage resulting from a reallocation in accordance with Obligations being directly affected therebySECTIONS 2.2.3 and 3.2.2), increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments or reduce any fees described in ARTICLE V payable to any Lender without the consent of such Lender;
(ic) extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateLender's Loan, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i)on any Lender's Loan, so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of vote to rescind any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders acceleration made pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower shall not have the right to replace a Lender solely as a result of the exercise of such Lender’s rights (SECTION 10.2 and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.SECTION
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Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof or thereof (other than Letters of Credit and the Agents' Fee Letter (which documents may be changedamended or otherwise modified in accordance with the terms thereof)) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders, ; provided that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section 11.1 without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to a Commitment (it being understood that waivers or modifications (x) of conditions precedent, covenants, Defaults or Events of Default or (y) of a mandatory reduction in the Commitment Amount relating to such Commitment shall not constitute an increase of the aggregate amount of Credit Extensions that may be required to be made by such Lender pursuant to such Commitment), extend any final Commitment Termination Date or reduce any fees described in Article III payable to any Lender, in each Lender case without the consent of such Lender;
(other than a Defaulting Lender) with Obligations being directly affected thereby, (ic) extend the final scheduled maturity Stated Maturity Date for any Lender's Loan, or, except for the waiver of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-applicable post default increase in interest rates) rates or fees thereon or fees, reduce the principal amount thereof of, rate of interest or fees on any Loan or Reimbursement Obligations (except to which shall in each case include the extent repaid in cash) conversion of all or extend any part of the time for payment thereof Obligations into equity of any Obligor (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in any the rate of interest or fees for the purposes of this clause (i), c) so long as the primary principal purpose of the respective amendments such amendment or modifications to the financial definitions modification was not to reduce the rate of interest or fees)), or extend the date on which interest or fees are payable hereunderin respect of such Loan or Reimbursement Obligation, in each case, without the consent of the Lender which has made such Loan or, in the case of a Reimbursement Obligation, the respective Issuer owed, and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents, Holdings from its Obligations under the Holdings Guaranty, Mergerco from its Obligations under the Mergerco Guaranty or any Subsidiary Guarantor from its Obligations under the Subsidiary Guaranty (other than in connection with a Disposition of all or substantially all of the Capital Stock of such Subsidiary Guarantor in a transaction permitted by Section 7.2.11) or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; provided that the Required Lenders may at any time consent to the release of any Subsidiary Guarantor that (A) accounted for no more than 15% of consolidated revenues of Holdings and its Subsidiaries for the four consecutive Fiscal Quarters of Holdings ending on December 31, 2001 or if more recent financial information is (or is required to be) available, the last day of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agent and (B) has assets which represent no more than 15% of the consolidated assets of Holdings and its Subsidiaries as of December 31, 2001, or if more recent financial information is (or is required to be) available, the last day of the last Fiscal Quarter of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agent;
(f) amend, modify or waive any provision clause (b) of this Section 10.1, (iii) reduce the percentage specified 3.1.1 in the definition of Required Lenders, (iv) consent a manner adverse to the assignment or transfer by Borrower holders of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments unless such amendment, modification or waiver shall have been consented to by the holders of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of at least a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase majority of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or Commitments;
(Bg) without the consent of the Issuer, amend, modify or waive any provision the provisions of Sections 2.1.2clause (a)(i), 2.1.4(c), (d), (e), (f), (g) or 2.6, (h) of Section 3.1.1 or alter its rights or obligations with respect to Letters of Credit.
clause (b) Ifof Section 3.1.2, unless such amendment, modification or waiver shall have been consented to by the holders of at least a majority of the aggregate amount of Loans outstanding under the Tranche or Tranches adversely affected by such modification (it being agreed that, in connection with the event consented to by the Required Lenders, any proposed change, waiver, discharge increase in a Commitment Amount or termination the inclusion of another commitment to extend credit under this Agreement shall not be deemed for purposes of this clause (g) to constitute a modification that would adversely affect a Tranche);
(h) change any of the provisions terms of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a)2.
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
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Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof or thereof (other than Rate Protection Agreements, Letters of Credit and each Fee Letter (which documents may be changedamended or otherwise modified in accordance with the terms thereof) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders, ; provided that no such changeamendment, waiver, discharge modification or termination waiver shall, without the consent of each Lender :
(other than a Defaulting Lendera) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan modify this Section or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify change or waive any provision of this Section 10.1, (iii) reduce 4.8 requiring pro rata treatment of the percentage specified in the definition of Required Lenders, (iv) consent to or the assignment or transfer sharing of payments by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLenders, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to case without the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall all Lenders;
(Ab) increase the Revolving Loan Commitments aggregate amount of any Credit Extensions required to be made by a Lender over pursuant to its Commitments, extend the amount thereof then final Commitment Termination Date of Credit Extensions made (or participated in) by a Lender or extend the final Stated Maturity Date for any Lender's Loan, in effect each case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Sections 8.2 and 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) extend any date fixed for the payment of principal pursuant to clause (d) of Section 3.1.1, reduce the principal amount of or rate of interest on any Lender's Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)'s Loans, or (B) in each case without the consent of such Lender;
(d) reduce the Issuerpercentage set forth in the definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders;
(g) (i) amend, modify or waive any provision clause (b) of Sections 2.1.2Section 3.1.1 or (ii) have the effect (either immediately or at some later time) of enabling the Borrower to satisfy a condition precedent to the making of a Revolving Loan or the issuance of a Letter of Credit unless such amendment, 2.1.4modification or waiver shall have been consented to by the Lenders holding a majority of the aggregate amount of the then outstanding Revolving Loan Commitments; or
(h) affect adversely the interests, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses the Administrative Agent) or any Issuer (i) through (viin its capacity as Issuer), inclusiveunless consented to by the Administrative Agent or such Issuer, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Credit Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Credit Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
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Waivers, Amendments, Etc. (a) Neither No amendment or waiver of any provision of this Agreement nor or any other Loan Transaction Document, and no consent to any departure by the Transferor, the Servicer or any other party to any Transaction Document nor any terms hereof or thereof may therefrom, shall be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto Requisite Purchasers and the Required LendersTransferor, provided the Servicer or the applicable party to such Transaction Document, as the case may be, and acknowledged by the Administrative Agent, and each 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 changeamendment, waiverwaiver or consent shall:
(a) increase or extend any Purchaser’s Purchaser Commitment or subject any Purchaser to additional obligations without the written consent of such Purchaser;
(b) postpone or extend any date fixed by this Agreement or any other Transaction Document for any payment of fees or any other amounts due to any Purchaser hereunder without the written consent of each Purchaser directly affected thereby;
(c) reduce any fees or other amounts payable to any Purchaser hereunder (including without limitation the Purchaser Investment and Yield Reserve owing thereto) without the written consent of each Purchaser directly affected thereby; provided, discharge or termination shallhowever, without that only the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, the Requisite Purchasers shall be necessary (i) extend to amend the final scheduled maturity definition of “Default Rate” or (ii) to waive any Revolving Loan obligation of the Transferor, Servicer or Note Guarantor to pay interest at the Default Rate;
(d) change any Purchaser’s Percentage without the written consent of such Purchaser;
(e) amend this Section or extend Section 8.10 without the Stated Expiry Date written consent of each Purchaser;
(f) release the Guarantor from any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except obligation undertaken by it pursuant to the extent repaid in cashPurchase and Sale Agreement without the written consent of each Purchaser;
(g) substitute or extend add Obligors without the time for payment thereof written consent of each Purchaser;
(it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose h) amend Section 7.01(i) of the respective amendments or modifications to the financial definitions was not Agreement to reduce the interest or fees payable hereunder), minimum debt ratings required as to any Obligor set forth therein without the written consent of each Purchaser; or
(iii) amend, modify or waive change any provision of this Section 10.1, (iii) reduce the percentage specified in or the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all “Requisite Purchasers” or any material portion other provision hereof specifying the number or percentage of Purchasers required to amend, waive or otherwise modify any rights hereunder without the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the written consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or terminationPurchaser; provided further, that no amendment, waiver or consent shall (i), unless in any event writing and signed by the 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 Administrative Agent in addition to the second proviso to Section 10.1(a).
(c) No failure Requisite Purchasers or delay on all the part Purchasers, as the case may be, affect the rights or duties of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or Agent under any other Loan Document shall operate as Transaction Document, or (ii) have the effect of making any Purchaser’s Percentage hereunder a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or different percentage than its Pro Rata Share under the exercise of any other power, privilege or rightMattel Credit Agreement. No notice to or demand on the Borrower any Seller Party in any case shall entitle it any Seller Party to any other or further notice or demand in similar or other circumstances. No Any amendment, modification, termination, waiver or approval consent effected in accordance with this Section 10.01 shall be binding upon each Purchaser at the time outstanding, each future Purchaser and, if signed by the Administrative AgentSeller Parties, on the Issuer Seller Parties. Notwithstanding anything to the contrary herein, no Defaulting Purchaser shall have any right to approve or disapprove any Lender under this Agreement amendment, waiver or any other Loan Document shallconsent hereunder, except as that the Purchaser Commitment of such Purchaser may not be otherwise stated in increased or extended nor the Purchaser Investment owing to such waiver or approval, Purchaser be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive reduced without the consent of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise havesuch Purchaser.
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Waivers, Amendments, Etc. The provisions of each Loan Document (other than Hedging Agreements, Letters of Credit or the Fee Letters, which shall be modified only in accordance with their respective terms) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrowers and the Majority Lenders; provided, that no other such amendment, modification or waiver shall:
(a) Neither modify clause (b) of Section 4.7, Section 4.8 (as it relates to sharing of payments) or this Agreement nor any other Loan Document nor any terms hereof or thereof may be changedSection, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shalleach case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 9.2 and Section 9.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Secured Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Majority Lenders);
(c) reduce, the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article 3 payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Majority Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter “Majority Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) any Borrower from its Obligations under the Loan Documents or any Guarantor from its Obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders;
(g) affect adversely the interests, rights or obligations with respect of the Administrative Agent (in its capacity as the Administrative Agent) or the Issuer (in its capacity as Issuer) or the Swing Line Lender (in its capacity as Swing Line Lender) unless consented to Letters of Credit.by the Administrative Agent or the Issuer or the Swing Line Lender, as the case may be; or
(bh) If, in connection with amend the definition of “Borrowing Base” or effect any proposed change, waiver, discharge or termination increases thereto unless consented to any by all of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Lenders. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: First Lien Credit Agreement (Milagro Oil & Gas, Inc.)
Waivers, Amendments, Etc. The provisions of each Loan Document (other than Cash Management Agreements, Rate Protection Agreements or Letters of Credit, which shall be modified only in accordance with their respective terms) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Company and the Required Lenders (or the Administrative Agent acting as directed by the Required Lenders); provided, that any amendment that would disproportionately affect the obligation of the Company (i) to reimburse obligations under the Revolving Facility will not be effective without the approval of the Required Revolving Lenders or (ii) to make any payments with respect to Loans under the Term Facility will not be effective without the approval of the Required Term Lenders or; provided, further, that no such amendment, modification or waiver shall:
(a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest ratesmodify Section 4.7(b) or fees thereon or reduce the principal amount thereof Section 4.8 (except as it relates to the extent repaid in cashsharing of payments) or extend the time for payment thereof (it being understood that any amendment this Section or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive change any provision of this Section 10.1, (iii) reduce Agreement in any manner that would alter the percentage specified in pro rata sharing of payments or other amounts or the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion pro rata treatment of the Collateral, exceptLenders, in each case, as provided in Section 7.1.9 without the written consent of each Lender directly and adversely affected thereby;
(b) extend or in connection with increase the aggregate amount of any Credit Extensions required to be made by a Disposition or refinancing that is otherwise permitted Lender pursuant to the terms its Commitments, postpone or extend any date scheduled for any payment of this Agreement; provided further, thatprincipal (including at final maturity) of Credit Extensions made (or participated in) by a Lender, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect each case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness) the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that the Issuervote of Required Lenders shall be sufficient to waive the payment, amendor reduce the increased portion, modify of interest accruing under Section 3.2.2);
(d) change the required application of any repayments or waive prepayments pursuant to Section 3.1.2 without the written consent of each Lender directly and adversely affected thereby;
(e) change any provision of Sections 2.1.2(i) this Section 10.1 or (ii) the definition of “Required Revolving Lenders” or “Required Term Lenders” without the written consent of each Lender directly and adversely affected thereby;
(f) change the currency of any outstanding loan without the written consent of each Lender directly and adversely affected thereby;
(g) change any provision specifying the number of Lenders or portion of the Loans or Commitments required to take any action under the Loan Documents to reduce the percentage set forth therein, 2.1.4without the written consent of all Lenders;
(h) modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(i) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(j) except as otherwise expressly provided in a Loan Document, release (i) the Borrowers from their Obligations under the Loan Documents, (ii) Guarantors from the Subsidiary Guaranty is such release would release all or 2.6substantially all of the value of the Subsidiary Guaranty or (iii) all or substantially all of the collateral under the Loan Documents, or alter its in each case without the consent of all Lenders;
(k) affect adversely the interests, rights or obligations with respect to Letters of Credit.
any Agent (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement its capacity as contemplated by clauses (i) through (visuch Agent), inclusive, of the first proviso to Section 10.1(aany Issuer (in its capacity as Issuer), the Swingline Lender (in its capacity as Swingline Lender), a Cash Management Bank (in its capacity as a Cash Management Bank) or a Qualified Counterparty (in its capacity as a Qualified Counterparty), unless consented to by such Person, as the case may be; or
(l) amend, waive or otherwise modify any term or provision of Section 7.2.4, the definition of “Total Net Debt Leverage Ratio” or the definition of “Interest Coverage Ratio” (or any of their respective component definitions (as used solely in such Section but not as used in other Sections of this Agreement)), without the written consent of the Required Lenders is obtained Revolving Lenders, but without the consent of one or more of such any other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Lenders. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding any provision herein to the contrary, powers this Agreement may be amended to extend the Stated Maturity Date of (x) the Revolving Loan Commitments of Revolving Lenders that agree to such extension with respect to their Revolving Loan Commitments with the written consent of each such approving Revolving Lender, the Administrative Agent and remedies herein the applicable Borrowers (and no other Lender) and, in connection therewith, to provide for different rates of interest and fees under the Revolving Facility with respect to the portion of the Revolving Loan Commitments with a Stated Maturity Date so extended; and (y) the Term Facility with respect to Term Loan Lenders that agree to such extension with respect to their Term Loans with the written consent of each such approving Term Loan Lender, the Administrative Agent and the Company (and no other Lender) and, in connection therewith, to provide for different rates of interest and fees under the Term Facility with respect to the portion thereof with a Stated Maturity Date so extended; provided, that in each such case any such proposed extension of the Stated Maturity Date with respect to a Credit Facility shall have been offered to each Lender with Loans or Commitments under the applicable Credit Facility proposed to be extended, and if the consents of such Lenders exceed the portion of Commitments and Loans the applicable Borrowers wishes to extend, such consents shall be accepted on a pro rata basis among the applicable consenting Lenders. This paragraph shall apply to any Incremental Term Loans in the same manner as it applies to the Term Facility; provided, that any such offer may, at the Company’s option, be made to the Lenders in respect of any tranche or tranches of Incremental Term Loans and/or the Term Facility without being made to any other tranche of Incremental Term Loans or the Term Facility, as the case may be. If any Lender is a non-consenting Lender, the Company may replace such non-consenting Lender in accordance with Section 4.10. 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 consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (i) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) 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. Notwithstanding anything to the contrary contained in Section 10.1, if at any time after the Closing Date, the Agent and the Company shall have jointly identified an ambiguity, obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof (such notice to be provided are cumulative and not exclusive of any rights, powers or remedies which to the Administrative Lenders by the Agent, the Issuer or any Lender would otherwise have).
Appears in 1 contract
Samples: Credit Agreement (Ferro Corp)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Paying Agent, the Issuer Issuing Banks or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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 Paying Agent, privilege the Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.17 or by an assignee pursuant to Section 8.06, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative AgentBorrower and the Required Lenders and either acknowledged by or notified to the Paying Agent or (ii) in the case of a Letter of Credit, pursuant to an agreement or agreements entered into by the Issuer Borrower and the applicable Issuing Bank; provided, however, that no such agreement shall (A) change the principal amount of any Advance or Letter of Credit Obligation, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Section 2.17), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender (other than as provided in Section 2.17 or 2.19) or reduce or extend the date for payment of the Commitment Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or (C) amend or modify the second proviso of Section 2.01(c)(ii), or the provisions of Section 2.13, this Section 8.01(b), the definition of the term “Required Lenders” or any other Loan Document shallprovision hereof specifying the number or percentage of Lenders required to 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; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Paying Agent or the Issuing Banks hereunder without the prior written consent of the Paying Agent or the Issuing Banks, respectively. 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 consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except as that (x) the Commitment of any Defaulting Lender may not be otherwise stated in increased or extended without the consent of such waiver Lender and (y) any waiver, amendment or approval, be applicable to subsequent transactions. No waiver modification requiring the consent of all Lenders or approval hereunder each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require any similar or dissimilar waiver or approval thereafter the consent of such Defaulting Lender.
(c) Notwithstanding anything to be granted hereunder. The rights, powers and remedies the contrary contained herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative AgentDocument, the Issuer or authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower 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 Paying Agent in accordance with Article VI for the benefit of all the Lenders and the Issuing Banks; provided, however, that the foregoing shall not prohibit (a) the Paying Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Paying 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) hereunder and under the other Loan Documents, (c) any Lender would from exercising setoff rights in accordance with Section 8.04 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any debtor relief law; and provided, further, that if at any time there is no Person acting as Paying Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise haveascribed to the Paying Agent pursuant to Article VI and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than the Fee Letter, which shall be modified only in accordance with their respective terms) may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided that, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Loans required to be made by a Lender pursuant to its Commitments, extend the Commitment Termination Date of Loans made (other than or participated in) by a Defaulting Lender) with Obligations being directly affected thereby, (i) Lender or extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness), the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any prepayment premium or fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2 and such waiver shall not constitute a reduction of the rate of interest hereunder);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release (i) the Borrower or the Company from their respective Obligations under the Loan Documents or any Subsidiary Guarantor from its obligations under the Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(f) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses the Administrative Agent) or the Collateral Agent (iin its capacity as the Collateral Agent) through (vi), inclusive, of the first proviso unless consented to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Agent. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding anything to the contrary contained in Section 10.1, powers if within sixty days following the Closing Date, the Administrative Agent and remedies herein the Company shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly provided are cumulative and if the same is not exclusive objected to in writing by the Required Lenders within five Business Days following receipt of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise havenotice thereof.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof or thereof (other than Rate Protection Agreements, Letters of Credit, the Arranger Fee Letter, the Compensation Agreements and each Administrative Agent Fee Letter (which documents may be changedamended or otherwise modified in accordance with the terms thereof)) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders; provided, provided that no such changeamendment, waiver, discharge modification or termination waiver shall, without the consent of each Lender :
(other than a Defaulting Lendera) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan modify this Section or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify change or waive any provision of this Section 10.1, (iii) reduce 4.8 or Section 2.2 requiring pro rata treatment of the percentage specified in the definition of Required Lenders, (iv) consent to or the assignment or transfer sharing of payments by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLenders, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to case without the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall all Lenders;
(Ab) increase the Revolving Loan Commitments aggregate amount of any Credit Extensions required to be made by a Lender over pursuant to its Commitments, extend the amount thereof then final Commitment Termination Date of Credit Extensions made (or participated in) by a Lender or extend the final Stated Maturity Date for any Lender’s Loan, in effect each case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) extend any date fixed for the payment of principal pursuant to clauses (c) and (d) of Section 3.1.1, reduce the principal amount of or rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender;
(d) reduce the Issuerpercentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) any Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under any Loan Document or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders;
(i) amend, modify or waive clause (b) of Section 3.1.1 or (ii) have the effect (either immediately or at some later time) of enabling any provision Borrower to satisfy a condition precedent to the making of Sections 2.1.2a Revolving Loan or the issuance of a Letter of Credit unless such amendment, 2.1.4modification or waiver shall have been consented to by the Lenders holding a majority of the aggregate amount of the then outstanding Revolving Loan Commitments; or
(h) affect adversely the interests, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
either Administrative Agent (b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement its capacity as contemplated by clauses (i) through (vian Administrative Agent), inclusive, of either Swing Line Lender (in its capacity as the first proviso to Section 10.1(aSwing Line Lender) or any Issuer (in its capacity as Issuer), the consent of the Required Lenders is obtained but the consent of one or more of unless consented to by such other Lenders whose consent is required is not obtainedAdministrative Agent, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Swing Line Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long such Issuer, as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither No amendment, modification, termination or waiver of any provision of this Agreement nor or any other Loan Document nor Document, and no consent to any terms hereof or thereof may departure by any Loan Party therefrom, shall in any event be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is the same shall be in writing and signed by the respective parties thereto Administrative Agent, the Parent, the Borrower and the Required Lenders, and each such amendment, modification, termination or waiver shall be effective only in the specific instance and for the specific purpose for which given; provided that that:
(a) without the consent of each Lender, no such changeamendment, waivermodification, discharge termination or termination waiver shall: (i) except to the extent permitted by Section 2.11, change any provision of this Credit Agreement regarding the pro rata sharing of payments required hereunder or the term “Pro Rata”; (ii) amend or waive this Section, the definition of “Required Lenders”, or any other provision specifying the number or percentage of Lenders required to take any action under any Loan Document; (iii) release all or substantially all of the Collateral, other than in accordance with the terms of any Loan Document; (iv) release all or substantially all of the Guarantors from their guaranty obligations under any Loan Document, other than in accordance with the terms of any Loan Document or (v) to amend Section 9.6;
(b) without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly adversely affected thereby, no such amendment, modification, termination or waiver of this Agreement or any other Loan Document shall: (i) except to the extent permitted by Section 2.11, extend or increase the Commitment Amount or change the Percentage of any Lender; (ii) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Datedue date for, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any of, rate of interest or fees for purposes of this clause (i)on, so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce under the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this AgreementLoan Documents; provided further, that, in addition to only the consent of the Required Lenders required aboveshall be necessary (x) to amend the definition of “Default Rate” or to waive any obligation of the applicable Borrower to pay interest or Letter of Credit fees at the Default Rate or (y) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or Letter of Credit or to reduce any fee payable hereunder; or (iii) extend the due date for, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over reduce the amount thereof then in effect without the consent of, any scheduled prepayment under Section 3.1.2(a) or Section 3.1.2(b) of such Lender (it being understood that waivers principal on any Loan or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or terminationReimbursement Obligation; provided further, that in any event the 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 the second proviso to Section 10.1(a).and
(c) No failure no amendment, modification, termination or delay on waiver affecting the part rights or duties of the Administrative Agent, the Issuer Swing Line Lender or any L/C Issuer under this Agreement or any other Loan Document shall be effective unless in writing and signed by the Administrative Agent, the Swing Line Lender or such L/C Issuer, as the case may be. Notwithstanding anything to the contrary contained in this Section 11.1 or any other Loan Document, (a) if the Administrative Agent and any Loan Party have jointly identified an obvious error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the applicable Loan Party shall be permitted to amend such provisions or cure any ambiguity, defect or inconsistency and such amendment shall become effective without any further action or consent of any other party to any Loan Document, (b) guarantees, Collateral Documents and related documents executed by any Loan Party or any of their Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, supplemented or waived by the Administrative Agent 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 ambiguities, omissions, mistakes or defects or (z) cause such guaranty, Collateral Document or other related documents to be consistent with this Agreement and the other Loan Documents and (c) the Loan Parties and the Administrative Agent may, without the input or consent of any other Lender, effect such amendments to the Loan Documents as may be necessary or appropriate to effect the provisions of Section 2.11. No failure, delay or course of dealing on the part of any Lender Party in exercising any power, right or privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege right or rightprivilege. No notice to or demand on the Parent, the Borrower or any other Loan Party in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under The remedies provided in this Agreement or any other Loan Document shall, except as may are cumulative and shall be otherwise stated in such waiver or approval, be applicable addition to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The and independent of all rights, powers and remedies herein existing by virtue of any state or rule of Law or in any of the other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveDocuments.
Appears in 1 contract
Samples: Credit Agreement (Wayfair Inc.)
Waivers, Amendments, Etc. The provisions of each Loan Document (other than Cash Management Agreements, Rate Protection Agreements or Letters of Credit, which shall be modified only in accordance with their respective terms) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Company and the Required Lenders (or the Administrative Agent acting as directed by the Required Lenders); provided, that any amendment that would disproportionately affect the obligation of the Company (i) to reimburse obligations under the Revolving Facility will not be effective without the approval of the Required Revolving Lenders or (ii) to make any payments with respect to Loans under the Term Facility will not be effective without the approval of the Required Term Lenders or; provided, further, that no such amendment, modification or waiver shall:
(a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest ratesmodify Section 4.7(b) or fees thereon or reduce the principal amount thereof Section 4.8 (except as it relates to the extent repaid in cashsharing of payments) or extend the time for payment thereof (it being understood that any amendment this Section or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive change any provision of this Section 10.1, (iii) reduce Agreement in any manner that would alter the percentage specified in pro rata sharing of payments or other amounts or the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion pro rata treatment of the Collateral, exceptLenders, in each case, as provided in Section 7.1.9 without the written consent of each Lender directly and adversely affected thereby;
(b) extend or in connection with increase the aggregate amount of any Credit Extensions required to be made by a Disposition or refinancing that is otherwise permitted Lender pursuant to the terms its Commitments, postpone or extend any date scheduled for any payment of this Agreement; provided further, thatprincipal (including at final maturity) of Credit Extensions made (or participated in) by a Lender, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect each case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness) the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided, that the Issuervote of Required Lenders shall be sufficient to waive the payment, amendor reduce the increased portion, modify of interest accruing under Section 3.2.2);
(d) change the required application of any repayments or waive prepayments pursuant to Section 3.1.2 without the written consent of each Lender directly and adversely affected thereby;
(e) change any provision of Sections 2.1.2(i) this Section 10.1 or (ii) the definition of “Required Revolving Lenders” or “Required Term Lenders” without the written consent of each Lender directly and adversely affected thereby;
(f) change the currency of any outstanding loan without the written consent of each Lender directly and adversely affected thereby;
(g) change any provision specifying the number of Lenders or portion of the Loans or Commitments required to take any action under the Loan Documents to reduce the percentage set forth therein, 2.1.4without the written consent of all Lenders;
(h) modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(i) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(j) except as otherwise expressly provided in a Loan Document, release (i) the Borrowers from their Obligations under the Loan Documents, (ii) Guarantors from the Subsidiary Guaranty isif such release would release all or 2.6substantially all of the value of the Subsidiary Guaranty or (iii) all or substantially all of the collateral under the Loan Documents, or alter its in each case without the consent of all Lenders;
(k) affect adversely the interests, rights or obligations with respect of any Agent (in its capacity as such Agent), any Issuer (in its capacity as Issuer), any Swingline Lender (in its capacity as Swingline Lender), a Cash Management Bank (in its capacity as a Cash Management Bank) or a Qualified Counterparty (in its capacity as a Qualified Counterparty), unless consented to Letters of Credit.by such Person, as the case may be; or
(bl) Ifamend, in connection with waive or otherwise modify any proposed changeterm or provision of Section 7.2.4, waiverthe definition of “Total Net Leverage Ratio”, discharge “Senior Secured Net Leverage Ratio” or termination to the definition of “Fixed Charge Coverage Ratio” (or any of the provisions their respective component definitions (as used solely in such Section but not as used in other Sections of this Agreement as contemplated by clauses (i) through (viAgreement)), inclusive, of without the first proviso to Section 10.1(a), the written consent of the Required Lenders is obtained Revolving Lenders, but without the consent of one or more of such any other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Lenders. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding any provision herein to the contrary, powers this Agreement may be amended to extend the Stated Maturity Date of (x) the Revolving Loan Commitments of Revolving Lenders that agree to such extension with respect to their Revolving Loan Commitments with the written consent of each such approving Revolving Lender, the Administrative Agent and remedies herein the applicable Borrowers (and no other Lender) and, in connection therewith, to provide for different rates of interest and fees under the Revolving Facility with respect to the portion of the Revolving Loan Commitments with a Stated Maturity Date so extended; and (y) the Term Facility with respect to Term Loan Lenders that agree to such extension with respect to their Term Loans with the written consent of each such approving Term Loan Lender, the Administrative Agent and the Company (and no other Lender) and, in connection therewith, to provide for different rates of interest and fees under the Term Facility with respect to the portion thereof with a Stated Maturity Date so extended; provided, that in each such case any such proposed extension of the Stated Maturity Date with respect to a Credit Facility shall have been offered to each Lender with Loans or Commitments under the applicable Credit Facility proposed to be extended, and if the consents of such Lenders exceed the portion of Commitments and Loans the applicable Borrowers wishes to extend, such consents shall be accepted on a pro rata basis among the applicable consenting Lenders. This paragraph shall apply to any Incremental Term Loans in the same manner as it applies to the Term Facility; provided, that any such offer may, at the Company’s option, be made to the Lenders in respect of any tranche or tranches of Incremental Term Loans and/or the Term Facility without being made to any other tranche of Incremental Term Loans or the Term Facility, as the case may be. If any Lender is a non-consenting Lender, the Company may replace such non-consenting Lender in accordance with Section 4.10. 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 consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (i) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) 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. Notwithstanding anything to the contrary contained in Section 10.1, if at any time after the Closing Date, the Agent and the Company shall have jointly identified an ambiguity, obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then the Agent and the Company shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof (such notice to be provided are cumulative and not exclusive of any rights, powers or remedies which to the Administrative Lenders by the Agent, the Issuer or any Lender would otherwise have).
Appears in 1 contract
Samples: Credit Agreement (Ferro Corp)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof or thereof (other than Letters of Credit, the Agents' Fee Letter (which documents may be changedamended or otherwise modified in accordance with the terms thereof)) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders, ; provided that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify or waive the provisions of Section 4.8 requiring pro rata treatment of the Lenders or modify this Section 12.1 without the consent of each Lender all Lenders (other than except such amendments as may be required for the purpose (but solely for the purpose) of effecting an increase of a Defaulting LenderCommitment Amount or the inclusion of a new commitment pursuant to clause (g) with Obligations being directly affected thereby, below);
(ib) extend increase the final scheduled maturity aggregate amount of any Revolving Loan Credit Extensions required to be made by a Lender pursuant to a Commitment (it being understood that waivers or Note modifications (x) of conditions precedent, covenants, Defaults or extend Events of Default or (y) of a mandatory reduction in the Stated Expiry Date Commitment Amount relating to such Commitment shall not constitute an increase of any Letter the aggregate amount of Credit beyond the Maturity DateExtensions that may be required to be made by such Lender pursuant to such Commitment), extend any final Commitment Termination Date or reduce the rate or extend the time of payment of interest (except any fees described in connection with a waiver of applicability of Article III payable to any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof Lender (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in the fees payable under Article III), in each case without the consent of such Lender;
(c) extend the final Stated Maturity Date for any Lender's Loan, or, except for the waiver of any applicable post default increase in interest rates or fees, reduce the principal amount of, rate of interest or fees on any Loan or Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 1.4 shall not constitute a reduction in the rate of interest or fees for the purposes of this clause (i), c) so long as the primary principal purpose of the respective amendments such amendment or modifications to the financial definitions modification was not to reduce the rate of interest or fees)), or extend the date on which interest or fees are payable hereunderin respect of such Loan or Reimbursement Obligation, in each case, without the consent of the Lender which has made such Loan or, in the case of a Reimbursement Obligation, the respective Issuer owed, and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of "Required Lenders" (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 extensions of Term Loans and Revolving Loan Commitments are included on the Amendment Effective Date) or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, (i) permit the assignment by either Borrower of its Obligations under the Loan Documents, (ii) release Holdings from its Obligations under the Holdings Guaranty, the U.S. Borrower from its obligations under the U.S. Borrower Guaranty or any Subsidiary Guarantor from its Obligations under the Subsidiary Guaranty (other than in connection with a Disposition of all or substantially all of the Capital Stock of such Subsidiary Guarantor in a transaction permitted by Section 7.2.11) or (iii) release all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; provided that the Required Lenders may at any time consent to the release of any Subsidiary Guarantor that (A) accounted for no more than 15% of consolidated revenues of Holdings and its Subsidiaries for the four consecutive Fiscal Quarters of Holdings ending on June 30, 2003 or if more recent financial information is (or is required to be) available, the last day of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agents and (B) has assets which represent no more than 15% of the consolidated assets of Holdings and its Subsidiaries as of June 30, 2003, or if more recent financial information is (or is required to be) available, the last day of the last Fiscal Quarter of the most recently completed Fiscal Quarter with respect to which, pursuant to Section 7.1.1, financial statements have been, or are required to have been, delivered by Holdings to the Administrative Agents;
(f) amend, modify or waive any provision clause (b) of this Section 10.1, (iii) reduce the percentage specified 3.1.1 in the definition of Required Lenders, (iv) consent a manner adverse to the assignment or transfer by Borrower holders of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments unless such amendment, modification or waiver shall have been consented to by the holders of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of at least a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase majority of the Revolving Loan Commitment Commitments;
(g) amend, modify or waive the provisions of clause (a)(i), (c), (d), (e), (f), (g), (h) or (j) of Section 3.1.1 or clause (b) of Section 3.1.2, unless such amendment, modification or waiver shall have been consented to by the holders of at least a majority of the aggregate amount of Loans outstanding under the Tranche or Tranches adversely affected by such modification (it being agreed that, in the event consented to by the Required Lenders, any Lender, and that an increase in a Commitment Amount or the available portion inclusion of any Revolving Loan Commitment of any Lender another commitment to extend credit under this Agreement shall not be deemed for purposes of this clause (g) to constitute an increase a modification that would adversely affect a Tranche);
(h) change any of the Revolving Loan Commitment terms of such Lender), or (B) Section 2.3.2 without the consent of the IssuerSwing Line Lender affected thereby; or
(i) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Agent (in its capacity as an Agent) or the Issuer, unless consented to by such Lender) pursuant to Agent or the second proviso to Section 10.1(a).
(c) Issuer, as the case may be. No failure or delay on the part of the Administrative any Agent, the Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative any Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 12.1, powers the Administrative Agents, in coordination with the Syndication Agent, shall have primary responsibility, together with the Borrowers, in the negotiation, preparation and remedies herein documentation relating to any amendment, modification or in waiver under this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement, including, without limitation, the provisions of the Bank Credit Agreement nor any other Loan incorporated herein, and of each Credit Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Revco and the Required LendersLenders and acknowledged by the Administrative Agent (it being understood that the Administrative Agent has no independent vote), provided that no such changeamendment, modification or waiver:
(a) which would modify any requirement hereunder that any particular action be taken by all Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(b) which would modify this Section 6.1, discharge change the definition of "Required Lenders" or termination shall"Voting Percentage", increase any Total Revolving Credit Commitment Amount or change any Percentage or Voting Percentage for any Lender, reduce any fees described in Article II, extend the Revolving Credit Commitment Termination Date or subject any Lender to any additional obligations shall be made without the consent of each Lender Lender;
(other than a Defaulting Lenderc) with Obligations being directly affected thereby, (i) which would extend any mandatory Commitment reduction date or reduce the final scheduled maturity amount of any Revolving Loan or Note mandatory Commitment reduction or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Datedue date for, or reduce the rate or extend the time amount of any payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of principal, interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive on any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination Loan shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect be made without the consent of such Lender each Lender;
(it being understood that waivers d) which would affect adversely the interests, rights or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase obligations of the Revolving Loan Commitment of any Lender, and that an increase in Administrative Agent qua the available portion of any Revolving Loan Commitment of any Lender Administrative Agent shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) be made without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Administrative Agent;
(be) Ifwhich would release Revco under the Debt Registration Agreement; or
(f) which would release HSI under the HSI Guaranty, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), shall be made without the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtainedeach Lender, then the Borrower shall have the rightand provided, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that the Fee Letter may be amended or rights or privileges thereunder waived in any event a writing executed by the 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 the second proviso to Section 10.1(a).
(c) parties thereto. No failure or delay on the part of the Administrative Agent, the Issuer Agent or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Credit Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower Revco in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer Agent or any Lender under this Agreement or any other Loan Credit Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Revco D S Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid expressly otherwise set forth in cashsuch Loan Document) may from time to time be amended, modified or extend waived, if such amendment, modification or waiver is in writing and consented to by the time for payment thereof Borrower (it being understood or any other relevant Obligor party to such Loan Document), the Required Lenders (or, in the case of the MMS Guaranty, the Account Agreement and the Collateral Agreements, the Required Collected Lenders), the Collateral Agent (but only if such provision involves the rights or obligations of the Collateral Agent) and the Administrative Agent (but only if the relevant provision involves the rights or obligations of the Administrative Agent); PROVIDED, HOWEVER, that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any amendment particular action be taken or modification a determination be made by, or with the consent of or in consultation with all the Lenders or the Collected Lenders or by the Required Lenders or by the Required Collected Lenders shall be effective unless consented to the financial definitions in by each Lender;
(b) modify this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i)Section, so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in change the definition of Required Lenders"REQUIRED LENDERS" or "REQUIRED COLLECTED LENDERS", (iv) consent increase the Aggregate Commitment Amount, change the definition of "PERCENTAGE" with respect to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the GuarantyLender, or (vi) release otherwise subject any Subsidiary Guarantor from the Subsidiary Guaranty or release all or Lender to any material portion of the Collateraladditional obligation hereunder, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to shall be effective without the consent of all the Required Lenders required aboveLenders;
(c) extend the due date for, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over reduce the amount thereof then of, any payment or prepayment of principal of or interest on any Loan or any commitment commission or any other amount payable hereunder or under any other relevant Loan Document shall be made without the consent of all the Lenders;
(d) reduce any fee described in effect SECTION 3.3.1 or affect the interests, rights or obligations of either Agent QUA Agent shall be made without the consent of such Lender Agent;
(it being understood that waivers e) except as specifically provided for in this Agreement or modifications of conditions precedentany relevant Collateral Agreement, covenants, Defaults authorize or Events of Default or of a mandatory reduction in effect the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment release of any Lender, and that an increase in material collateral which is the available portion subject of any Revolving Loan Commitment of Lien granted or purported to be granted pursuant to any Lender such Collateral Agreement shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) be made without the consent of all the Issuer, amend, modify Lenders or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.the Collected Lenders; or
(bf) If, in connection with modify any proposed change, waiver, discharge or termination to any of the provisions term of this Agreement as contemplated by clauses (i) through (vi)or any other Loan Document expressly relating to the priority of payment of, inclusiveor the granting of any security in respect of, any obligations of the first proviso Borrower under any Metal Trading Agreement or similar arrangement to Section 10.1(a), which any Lender is a party shall be made without the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) . No failure or delay on the part of any of the Administrative Agent, the Issuer or any Lender Finance Parties in exercising any power, privilege power or right under this Agreement or under any other Loan Document to which it is a party shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower or MMS in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Finance Party under this Agreement or any other Loan Document to which it is a copy shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither No amendment or waiver of any provision of this Agreement nor or any other Loan Document nor Document, and no consent to any terms hereof departure by Holdings, the Borrower or thereof may any other Subsidiary therefrom, shall be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto Required Lenders and the Required LendersBorrower and acknowledged by the Administrative Agent, provided that and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that
(a) no such changeamendment, waiver, discharge waiver or termination consent shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, :
(i) extend or increase the final scheduled maturity Commitment of a Lender (or reinstate any Revolving Loan Commitment terminated pursuant to Section 9.2) without the written consent of such Lender whose Commitment is being extended or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof increased (it being understood and agreed that a waiver of any amendment condition precedent set forth in Article V or modification to the financial definitions in this Agreement shall not constitute a waiver of any Default or Event of Default or a mandatory reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted Commitments pursuant to the terms of this Agreement; provided further, that, Agreement is not considered an extension or increase in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.;
(bii) If, in connection with postpone any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated date fixed by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shallfor any payment of principal (excluding mandatory prepayments), except as may be otherwise stated in interest, Repayment Premiums, fees or other amounts due to the Lenders (or any of them) without the written consent of each Lender entitled to receive such payment (it being understood that a waiver of any Default or approvalEvent of Default shall not constitute such a postponement);
(iii) reduce the principal of, be applicable to subsequent transactions. No waiver the rate of interest specified herein on, or approval any Repayment Premium or Exit Fee specified herein on any Loan, or any other fees or other amounts payable hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in under any other Loan Document expressly provided are cumulative and not exclusive without the written consent of each Lender entitled to receive such payment of principal, interest, fees or other amounts;
(iv) (x) amend or waive any rightsprovision of Section 9.4, powers or remedies which the Administrative Agent, the Issuer (y) amend or waive Section 4.4(e) or any other provision providing for the pro rata treatment of the Lenders, in each case without the written consent of Lender would otherwise have.directly affected thereby;
Appears in 1 contract
Samples: Credit Agreement (Valneva SE)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, extend the Revolving Loan Commitment Termination Date of Credit Extensions made (other than or participated in) by a Defaulting Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender) with Obligations being directly affected thereby, ;
(ic) extend the final scheduled maturity of Stated Maturity Date for any Revolving Lender's Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or rate of interest on any Lender's Loan or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of date on which interest or fees for purposes are payable in respect of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptsuch Lender's Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Sections 8.2 and 8.3 of conditions precedent, covenants, Defaults or Events amounts owing with respect to the Loans and other Obligations shall only require the vote of Default or of a mandatory reduction the Required Lenders);
(d) reduce the percentage set forth in the Revolving definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer or increase the amount of any Loan Commitment Amount shall not constitute an increase Note Guaranty unless consented to by the Loan Note Guarantor;
(f) except as otherwise expressly provided in a Loan Document or in connection with and to effectuate permitted asset sales, release (i) any Borrower from its Obligations under the Loan Documents or any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty or (ii) all or substantially all of the Revolving collateral under the Loan Commitment Documents, in each case without the consent of all Lenders;
(g) change any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment terms of such Lender), or (B) Section 2.3.2 without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Swing Line Lender;
(bh) If, in connection with any proposed change, waiver, discharge or termination to change any of the provisions terms of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), or Sections 2.3.3 or 2.9 without the consent of the Required Lenders is obtained but Administrative Agent; or
(i) affect adversely the consent of one interests, rights or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower shall not have the right to replace a Lender solely as a result obligations of the exercise of such Administrative Agent (in its capacity as the Administrative Agent), the Swing Line Lender (in its capacity as Swing Line Lender’s rights ), the Other Currency Lender (and in its capacity as Other Currency Lender), the withholding of any required consent Issuer (in its capacity as Issuer), or the Loan Note Guarantor (in its capacity as Loan Note Guarantor), unless consented to by such the Administrative Agent, the Swing Line Lender) pursuant to , the second proviso to Section 10.1(a).
(c) Other Currency Lender, the Issuer or the Loan Note Guarantor, as the case may be. No failure or delay on the part of the Administrative Agent, the Issuer Issuer, the Loan Note Guarantor or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer Issuer, the Loan Note Guarantor or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid expressly otherwise set forth in cashsuch Loan Document) may from time to time be amended, modified or extend waived, if such amendment, modification or waiver is in writing and consented to by the time for payment thereof Borrower (it being understood or any other relevant Obligor party to such Loan Document), the Required Lenders (or, in the case of the MMS Guaranty, the Account Agreement and the Collateral Agreements, the Required Collected Lenders), the Collateral Agent (but only if such provision involves the rights or obligations of the Collateral Agent) and the Administrative Agent (but only if the relevant provision involves the rights or obligations of the Administrative Agent); PROVIDED, HOWEVER, that no such amendment, modification or waiver which would:-
(a) modify any requirement hereunder that any amendment particular action be taken or modification a determination be made by, or with the consent of or in consultation with all the Lenders or the Collateral Lenders by the Required Lenders or by the Required Collected Lenders shall be effective unless consented to the financial definitions in by each Lender;
(b) modify this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i)Section, so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in change the definition of Required Lenders"REQUIRED LENDERS" or "REQUIRED COLLECTED LENDERS", (iv) consent increase the Aggregate Commitment Amount, change the definition of "PERCENTAGE" with respect to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the GuarantyLender, or (vi) release otherwise subject any Subsidiary Guarantor from the Subsidiary Guaranty or release all or Lender to any material portion of the Collateraladditional obligation hereunder, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to shall be effective without the consent of all the Required Lenders required aboveLenders;
(c) extend the due date for, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over reduce the amount thereof then of, any payment or prepayment of principal of or interest on any Loan or any commitment commission or any other amount payable hereunder or under any other relevant Loan Document shall be made without the consent of all the Lenders;
(d) reduce any fee described in effect SECTION 3.3.1 or affect the interests, rights or obligations of either Agent QUA Agent shall be made without the consent of such Lender Agent; or
(it being understood that waivers e) except as specifically provided for in this Agreement or modifications of conditions precedentany relevant Collateral Agreement, covenants, Defaults authorize or Events of Default or of a mandatory reduction in effect the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment release of any Lender, and that an increase in material collateral which is the available portion subject of any Revolving Loan Commitment of Lien granted or purported to be granted pursuant to any Lender such Collateral Agreement shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) be made without the consent of all the Issuer, amend, modify Lenders or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Collected Lenders. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Finance Parties in exercising any power, privilege power or right under this Agreement or under any other Loan Document to which it is a party shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Finance Party under this Agreement or any other Loan Document to which it is a copy shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither No amendment or waiver of any provision of this Agreement nor or any other Loan Document nor Document, and no consent to any terms hereof departure by the Borrower or thereof may any Guarantor therefrom, shall be changed, waived, discharged or terminated effective unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto Required Lenders and the Required LendersBorrower or the applicable Guarantor, provided that as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that
(a) no such changeamendment, waiver, discharge waiver or termination consent shall, :
(i) extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 9.2) without the written consent of such Lender whose Commitment is being extended or increased (it being understood and agreed that a waiver of any condition precedent set forth in Article V or a waiver of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other Loan Document for any payment of principal (excluding mandatory prepayments), interest, Repayment Premiums, fees or other amounts due to the Lenders (or any of them) without the written consent of each Lender entitled to receive such payment (it being understood that a waiver of any Default or Event of Default shall not constitute such a postponement);
(iii) reduce the principal of, the rate of interest specified herein on or any Repayment Premium specified herein on any Loan, or any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment of principal, interest, fees or other amounts (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except such reduction in connection with a waiver of applicability any Default, Event of Default, mandatory prepayment or amendment to any post-default increase in interest ratesfinancial covenant);
(iv) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cashx) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify amend or waive any provision of Section 9.4, or (y) amend or waive any provision providing for the pro rata treatment of the Lenders, in each case without the written consent of each Lender directly affected thereby;
(v) change any provision of this Section 10.1, 10.1(a) or the definition of “Required Lenders” without the written consent of all the Lenders;
(iiivi) reduce the any percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by the Borrower of any of its their rights and obligations under this AgreementAgreement and the other Loan Documents, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion substantially all of the Collateral, exceptCollateral or release all or substantially all of the Guarantors from their obligations under the Guarantee, in each casecase without the written consent of all the Lenders;
(vii) (x) amend, as provided in waive or modify Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further11.6 hereof, that, in addition to without the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Lenders; and
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the Issuer rights or any Lender duties of the Administrative Agent under this Agreement or any other Loan Document shallDocument; provided, except however, that notwithstanding anything to the contrary herein, (i) each Lender is entitled to vote as may such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein and (ii) the Required Lenders shall determine whether or not to allow the Borrower or any Guarantor to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be otherwise stated binding on all of the Lenders. Any payments, fees or other consideration (other than reimbursements for out-of-pocket expenses) received by or on behalf of the Administrative Agent or any of the Lenders in such respect of any amendment, waiver or approval, consent under the Loan Documents shall be applicable distributed to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveLenders on a pro rata basis.
Appears in 1 contract
Samples: Credit Agreement (Harmony Biosciences Holdings, Inc.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, Letters of Credit or thereof the Fee Letter, which shall be modified only in accordance with their respective terms, or as otherwise permitted under Section 9.12 hereof) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no other such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article 3 payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which principal, interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter “Required Borrowing Base Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) either Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated the Administrative Agent) or any Issuer (in its capacity as Issuer) unless consented to by clauses (i) through (vi)the Administrative Agent or such Issuer, inclusive, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit Agreement (Dynamic Offshore Resources, Inc.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Obligor or Obligors party to such Loan Document and the Required Lenders; provided that, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shall, this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loans, reduce any fees described in Article III payable to any Lender, and that an increase waive payment Defaults or extend the scheduled date on which principal, interest or fees are payable in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) change (either positive or alter negative) the percentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release (i) the any Obligor from its Obligations under the Loan Documents to which such Obligor is a party or (ii) any collateral (unless in connection with a Disposition permitted under Section 7.2.10) under the Loan Documents, in each case without the consent of all Lenders; or
(f) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vithe Administrative Agent), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) . No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding anything to the contrary herein, powers no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender. Further, notwithstanding anything to the contrary contained in Section 10.1, if within sixty days following the effective date of any Loan Document, the Administrative Agent and remedies herein the Borrowers shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrowers shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly provided are cumulative and if the same is not exclusive objected to in writing by the Required Lenders within five Business Days following receipt of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise havenotice thereof.
Appears in 1 contract
Waivers, Amendments, Etc. The provisions of this Agreement and (other than a Royalty Agreement which may only be amended in accordance with the terms thereof) of each other Finance Document (except to the extent otherwise set forth in such Finance Document) may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Obligor (or Obligors) party thereto, the Security Trustee and the Required Secured Parties, and, in the case of any Security Document, the Security Trustee; provided, however, that no such amendment, modification or waiver which would:
(a) Neither modify any requirement hereunder that any particular action be taken or a determination be made by, or with the consent of or in consultation with, all the Secured Parties or the Required Secured Parties shall be effective unless consented to by each Secured Party;
(b) modify this Clause 15.1 or change the definition of "REQUIRED SECURED PARTIES", shall be made without the consent of each Secured Party;
(c) extend the due date for, or reduce the amount of, any payment or prepayment of principal or of interest on any Loan or any other amount payable hereunder shall be made without the consent of each Secured Party;
(d) affect the interests, rights or obligations of either Representative, the Facility Agent qua such Representative or the Facility Agent shall be made without the consent of such Representative or the Facility Agent (as the case may be);
(e) other than as specifically permitted by this Agreement nor or the Security Documents, modify or authorise or effect the release of any other Loan material portion of the collateral which is the subject of any lien granted or purported to be granted in favour of the Security Trustee or in favour of the Finance Parties pursuant to any relevant Security Document nor any terms hereof or thereof may shall be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by made:
(i) prior to an Event of Default and before the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shallDischarge Date, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), Secured Party;
(ii) amendafter an Event of Default and before the Discharge Date, modify or waive any provision without the consent of this Section 10.1, each Lender; and
(iii) reduce after the percentage specified in the definition of Required LendersDischarge Date, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to without the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall Secured Parties;
(Af) increase the Revolving Loan Commitments Commitment of any Lender over the amount thereof then in effect or otherwise subject any Lender to any additional obligation without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.;
(bg) If, in connection with modify any proposed change, waiver, discharge or termination to any term of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Finance Document expressly provided are cumulative and not exclusive relating to the priority of payment of, or the granting of any rightssecurity in respect of, powers or remedies any obligations of the Borrower under any Price Protection Agreement to which any Secured Party is a party shall be made without the Administrative Agent, consent of such Secured Party;
(h) materially reduce the Issuer obligations of the Sponsor under the Support Agreement shall be made without the consent of each Secured Party; or
(i) modify Clause 3 (or any Lender would defined term referred to therein), Clauses 5.4, 6.3, 6.4, 7.2 or 12.15 without the consent of each Secured Party; provided that nothing in this Clause 15.1 shall prevent the Security Trustee exercising its rights against any Obligor pursuant to any Finance Document unless it is directed otherwise haveby the Required Secured Parties.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, Letters of Credit, the Subsidiary Guaranty, Issuer Documents or thereof Arrangement Letters, which shall be modified only in accordance with their respective terms) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity of any Revolving Loan Commitment Termination Date of Credit Extensions made (or Note participated in) by a Lender or extend the Stated Expiry Maturity Date of for any Letter of Credit beyond Lender’s Loan past the Final Maturity Date, in each case without the consent of such Lender;
(c) reduce (by way of forgiveness) the principal amount of or reduce the rate of interest on any Lender’s Loan, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable in respect of such Lender’s Loans, in each case without the consent of such Lender (provided, that the vote of Required Lenders shall be sufficient to waive the payment, or reduce the rate or extend the time of payment increased portion, of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that accruing under Section 3.2.2 and any amendment or modification to of defined terms used in the financial definitions ratios in this Agreement shall not constitute a reduction in any the rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the unless it results in an actual reduction in such interest or fees payable hereunderfees), ;
(ii) amend, modify or waive any provision of this Section 10.1, (iiid) reduce the percentage specified set forth in the definition of “Required Lenders, ” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(ive) consent to increase the assignment or transfer by Borrower Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its rights and Obligations under the Loan Documents or any one or more Subsidiary Guarantors from their respective obligations under this Agreement, (v) release Guarantor from all or substantially all of the Guaranty, or (vi) release any Subsidiary Guarantor from value of the Subsidiary Guaranty or release (ii) during a Security Period, all or any material portion substantially all of the Collateral, exceptcollateral under the Loan Documents, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender all Lenders; or
(it being understood that waivers or modifications of conditions precedentg) affect adversely the interests, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vithe Administrative Agent), inclusive, of any Issuer (in its capacity as Issuer) or the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long Swing Line Lender (in its capacity as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 Swing Line Lender) pursuant unless consented to by the second proviso to Section 10.1(a).
(c) Administrative Agent, such Issuer or the Swing Line Lender, as the case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
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Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Letters of Credit or thereof the Fee Letter, which shall be modified only in accordance with their respective terms) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided that, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shall, this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender's Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce (by way of forgiveness), the principal amount of or reduce the rate of interest on any Lender's Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article III payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which interest or fees are payable in respect of such Lender)'s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of "Required Lenders" or alter modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or the Subsidiary Guarantor from its obligations under the Subsidiary Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses the Administrative Agent) or any Issuer (i) through (viin its capacity as Issuer), inclusiveunless consented to by the Administrative Agent or such Issuer, of as the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
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Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor (not including, for any purposes of this Section 10.1 hereof, the Fee Letter or any Rate Protection Agreement, each of which shall be governed by the terms hereof thereof) may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(i) modify this Section 10.1 without the consent of all Lenders (other than any Defaulting Lenders at such time except with respect to clauses (ii) and (iii) below);
(ii) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, discharge extend the final Commitment Termination Date of Credit Extensions made (or termination shallparticipated in) by a Lender or extend the final Stated Maturity Date for any Lender’s Loan, in each case without the consent of each such Lender (it being agreed, however, that any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 hereof of amounts owing with respect to the Loans and other Obligations shall only require the vote of the Required Lenders);
(iii) reduce the principal amount of or rate of interest on any Lender’s Loan or Reimbursement Obligation owing to it, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable in respect of such Lender’s Loans, in each case without the consent of each such Lender;
(iv) modify the percentage set forth in the definition of “Required Lenders” or “Required Supermajority Lenders” or modify any requirement hereunder that any particular action be taken by a specific percentage of Lenders (whether it be Required Lenders, Required Supermajority Lenders or all Lenders) without the consent of all Lenders (other than a any Defaulting LenderLenders at such time);
(A) with Obligations being directly affected therebyincrease the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit, (iB) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Subfacility Letter of Credit beyond the Maturity DateCommitment Termination Date without compliance with all requirements of Section 2.1.2(b) hereof, without the consent of all of the Lenders deemed to participate in such Letter of Credit or (C) extend the Stated Expiry Date of any Standby Letter of Credit beyond the Commitment Termination Date without compliance with all requirements of Section 2.1.3(b) hereof, without the consent of all of the Lenders (other than any Defaulting Lenders at such time) deemed to participate in such Letter of Credit;
(vi) except as expressly provided in Section 10.13(a) herein or otherwise as expressly provided in this Agreement or any other Loan Document, (A) release Borrowers from all of their Obligations under the Loan Documents, (B) release any parties from the Guarantee Agreement comprising all or substantially all of the value represented by the Guarantee Agreement, or reduce (C) release all or substantially all of the rate Collateral from the Liens under the Loan Documents or extend all or substantially all of the time of payment of interest Borrowing Base Assets or Leasehold Property (except as permitted in connection accordance with a waiver Section 7.2.11 hereof), in each case without the consent of applicability all Lenders (other than any Defaulting Lenders at such time);
(vii) increase the five (5%) percent of the Borrowing Base cap on Special Agent Advances made pursuant to Section 2.1.1 and additional Revolving Loans made pursuant to Section 10.20 hereof, without the consent of all Lenders (other than any post-default Defaulting Lenders at such time);
(viii) (A) increase the advance percentage rates constituting part of the Borrowing Base (in interest ratesexcess of the stated advance percentage rates in effect on the date hereof), or (B) modify the definition of “Borrowing Base” (or fees thereon or reduce any of the principal amount thereof (except defined terms referred to in the definition of the term Borrowing Base) but only to the extent repaid such proposed modification would result in cash) the increase in the advance rates above those in effect on the date hereof or extend in the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose increase of the respective amendments or modifications to amount of the financial definitions was not to reduce Borrowing Base, in each case without the interest or fees payable hereunder), consent of the Required Supermajority Lenders (iiother than any Defaulting Lenders at such time) and the Co-Collateral Agents;
(ix) amend, modify or waive any provision terms of this Section 10.19.11 hereof, (iii) reduce the percentage specified in or amend the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except“Co-Collateral Agents”, in each case, case without the consent of each of the Co-Collateral Agents;
(x) except as provided in Section 7.1.9 or in connection with 2.2.1 hereof, increase the Maximum Credit (other than as a Disposition or refinancing that is otherwise permitted result of an increase to the Maximum Credit pursuant to and in accordance with the terms of this Agreement; provided further, thatSection 2.2.1 hereof), in addition each case without the consent of all Lenders (other than any Defaulting Lenders at such time);
(xi) affect adversely the interests, rights or obligations of Agent or any Co-Collateral Agent (in its capacity as Agent or Co-Collateral Agent, as applicable) or the Issuer (in its capacity as Issuer), in each case without the consent of Agent, such Co-Collateral Agent or the Issuer, as the case may be;
(xii) decrease the minimum amount of Excess Availability required to be maintained by Borrowers under Section 7.2.4 hereof without the consent of the Required Supermajority Lenders required above(other than any Defaulting Lenders at such time) and the Co-Collateral Agents;
(xiii) except as expressly provided in Section 10.13(a) hereof or otherwise as expressly provided in this Agreement or any other Loan Document, no such changesubordinate any Lien in favor of the Agent on any Collateral, waiveror subordinate any of the Obligations, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of Co-Collateral Agents and all Lenders (other than any Defaulting Lenders at such Lender time); or
(it being understood that waivers or modifications of conditions precedentxiv) change the relative priority as set forth in Section 8.4 hereof, covenants, Defaults or Events of Default or of a mandatory reduction in the Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive all Lenders (other than any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of CreditDefaulting Lenders at such time).
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. All rights and remedies provided for in this Agreement are cumulative, and not exclusive of rights and remedies provided by law. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights.
(c) Notwithstanding anything to the contrary contained in Section 10.1(a) above, powers and remedies in connection with any amendment, modification, waiver, discharge or termination, in the event that any Lender whose consent thereto is required shall fail to consent or fail to consent in a timely manner (such Lender being referred to herein or in as a “Non-Consenting Lender”), but the consent of any other Loan Document expressly provided Lenders to such amendment, modification, waiver, discharge or termination that is required are cumulative obtained, if any, then either Administrative Borrower (so long as no Default shall have occurred and be continuing and otherwise pursuant to the terms of Section 4.11 hereof) or Xxxxx Fargo Bank shall have the right, but not exclusive the obligation, at any time thereafter to cause such Non-Consenting Lender, and upon the exercise by either Administrative Borrower or Xxxxx Fargo Bank of any rightssuch right, powers such Non-Consenting Lender shall have the obligation, to sell, assign and transfer to Xxxxx Fargo Bank or remedies which such Eligible Assignee as either Administrative Borrower or Xxxxx Fargo Bank, as the Administrative Agentcase may be, may specify, the Issuer Commitment of such Non-Consenting Lender and all rights and interests of such Non-Consenting Lender pursuant thereto. Administrative Borrower or Xxxxx Fargo Bank, as the case may be, shall provide the Non-Consenting Lender with prior written notice of its intent to exercise its right under this Section, which notice shall specify on date on which such purchase and sale shall occur. Such purchase and sale shall be pursuant to the terms of a Lender Assignment Agreement (whether or not executed by the Non-Consenting Lender), except that on the date of such purchase and sale, Xxxxx Fargo Bank, or such Eligible Assignee specified by Administrative Borrower or Xxxxx Fargo Bank, shall pay to the Non-Consenting Lender (except as Xxxxx Fargo Bank and such Non-Consenting Lender may otherwise agree) the amount equal to: (i) the principal balance of the Loans held by the Non-Consenting Lender outstanding as of the close of business on the Business Day immediately preceding the effective date of such purchase and sale, plus (ii) amounts accrued and unpaid in respect of interest and fees payable to the Non-Consenting Lender to the effective date of the purchase. Such purchase and sale shall be effective on the date of the payment of such amount to the Non-Consenting Lender and the Commitment of the Non-Consenting Lender shall terminate on such date.
(d) The consent of Agent and each Bank Product Provider that is providing Bank Products to Borrowers and has outstanding any Lender would otherwise havesuch Bank Products at such time that are secured under the Loan Documents shall be required for any amendment to the priority of payment of Obligations arising under or pursuant to any Rate Protection Agreements of a Borrower or other Bank Products as set forth in Section 8.4 hereof.
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Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor (other than any terms hereof Letter of Credit or thereof a Rate Protection Agreement) under which amendments, modifications and waivers may be changedeffected by the parties thereto) may from time to time be amended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each Lender all Lenders;
(other than a Defaulting Lenderb) with Obligations being directly affected thereby, (i) extend increase the final scheduled maturity aggregate amount of any Revolving Credit Extensions required to be made by any Lender pursuant to its Commitments, extend any Commitment of any Lender, extend any Stated Maturity Date for any Lender’s Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateSynthetic Deposit, or reduce the rate or extend the time of payment of interest (except any fees described in connection with a waiver of applicability of Article III payable to any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 9.2 and Section 9.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loan, reduce any fees described in Article III payable to any Lender or extend the date on which interest or fees are payable to any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) each case without the consent of such Lender (provided that, the Issuervote of Required Lenders shall be sufficient to waive the payment, or reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) the Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders;
(g) amend, modify or waive Section 5.2.1, unless, in either case, such amendment, modification or waiver shall have been consented to by the Lenders holding a majority of the aggregate amount of the Revolving Loan Exposure;
(h) change any provision of Sections 2.1.2this Agreement in a manner that by its terms adversely affects the rights in respect of payments due to either Revolving Loan Lenders, 2.1.4Term Loan Lenders or Synthetic Lenders, differently from the other Lenders, without the consent of either the Revolving Loan Lenders, Term Loan Lenders or 2.6Synthetic Lenders, or alter its as applicable, holding a majority in interest of the applicable portion of the Total Exposure Amount of such adversely affected Lenders;
(i) affect adversely the interests, rights or obligations of the Administrative Agent (in its capacity as the Administrative Agent) or any Issuer, unless consented to by the Administrative Agent or such Issuer, as the case may be; or
(j) with respect to Letters of Credit.
(b) Ifany LIBO Rate Loan, in connection with any proposed changeamend, waiver, discharge waive or termination modify the requirement that the Interest Period relative to any of the provisions of this Agreement as contemplated such Loan be one, two, three, six or, if available to all Lenders, nine or twelve months in duration, unless consented to by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of each Lender making such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Loan. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver which would:
(a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(b) modify this Section 10.1, discharge change the definition of "Required Lenders", increase the Revolving Commitment Amount or termination shallthe Percentage of any Lender, reduce any fees described in Article III, change the schedule of repayments of Loans provided for in Section 3.1.2, release any Guarantor from its obligations pursuant to any Guaranty (except in connection with a Permitted Asset Disposition, in which such cases no consent of any Lender is required), release all or substantially all of the collateral security, except as otherwise specifically provided in any Loan Document or extend the Revolving Commitment Termination Date or Maturity Date shall be made without the consent of each Lender and each holder of a Note;
(other than a Defaulting Lender) with Obligations being directly affected thereby, (ic) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Datedue date for, or reduce the rate amount of, any scheduled repayment or extend the time prepayment of payment principal of or interest on any Loan or any fee payable to a Lender (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (iion any Loan) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) be made without the consent of the Issuerholder of that Note evidencing such Loan or Lender entitled to such fee;
(d) affect adversely the interests, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.the Agent qua the Agent shall be made without consent of the Agent; or
(be) If, in connection with any proposed change, waiver, discharge modify Section 2.7 or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), 8.4 shall be made without the consent of the Required Lenders is obtained but the consent Letter of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Credit Issuer. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Credit Party in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender or the holder of any Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge modification or termination waiver shall, :
(a) modify this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, extend the Revolving Loan Commitment Termination Date of Credit Extensions made (other than or participated in) by a Defaulting Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender) with Obligations being directly affected thereby, ;
(ic) extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateLender's Loan, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or rate of interest on any Lender's Loan or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of date on which interest or fees for purposes are payable in respect of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptsuch Lender's Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Sections 8.2 and 8.3 of conditions precedent, covenants, Defaults or Events amounts owing with respect to the Loans and other Obligations shall only require the vote of Default or of a mandatory reduction the Required Lenders);
(d) reduce the percentage set forth in the Revolving definition of "Required Lenders" or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer or increase the amount of any Loan Commitment Amount shall not constitute an increase Note Guaranty unless consented to by the Loan Note Guarantor;
(f) except as otherwise expressly provided in a Loan Document or in connection with and to effectuate permitted asset sales, release (i) any Borrower from its Obligations under the Loan Documents or any Subsidiary Guarantor from its obligations under the Subsidiary Guaranty or (ii) all or substantially all of the Revolving collateral under the Loan Commitment Documents, in each case without the consent of all Lenders;
(g) change any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment terms of such Lender), or (B) Section 2.3.2 without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.Swing Line Lender;
(bh) If, in connection with any proposed change, waiver, discharge or termination to change any of the provisions terms of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), or Sections 2.3.3 or 2.9 without the consent of the Required Lenders is obtained but Other Currency Lender; or
(i) affect adversely the consent of one interests, rights or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the Borrower shall not have the right to replace a Lender solely as a result obligations of the exercise of such Administrative Agent (in its capacity as the Administrative Agent), the Swing Line Lender (in its capacity as Swing Line Lender’s rights ), the Other Currency Lender (and in its capacity as Other Currency Lender), the withholding of any required consent Issuer (in its capacity as Issuer), or the Loan Note Guarantor (in its capacity as Loan Note Guarantor), unless consented to by such the Administrative Agent, the Swing Line Lender) pursuant to , the second proviso to Section 10.1(a)Other Currency Lender, the Issuer or the Loan Note Guarantor, as the case may be.
(c) No failure or delay on the part of the Administrative Agent, the Issuer Issuer, the Loan Note Guarantor or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer Issuer, the Loan Note Guarantor or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other Loan Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Paying Agent, the Issuer Issuing Banks or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, privilege or any abandonment or 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 Paying Agent, privilege the Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of any rights or rightremedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below (other than a waiver of the minimum amount of Commitment assumed by an Assuming Lender pursuant to Section 2.17 or by an assignee pursuant to Section 8.06, which may be waived by unilateral consent of the Borrower), 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 the Borrower in any case shall entitle it the Borrower to any other or further notice or demand in similar or other circumstances. No waiver .
(b) Neither this Agreement nor any provision hereof may be waived, amended or approval modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Administrative AgentBorrower and the Required Lenders and either acknowledged by or notified to the Paying Agent or (ii) in the case of a Letter of Credit, pursuant to an agreement or agreements entered into by the Issuer Borrower and the applicable Issuing Bank; provided, however, that no such agreement shall (A) change the principal amount of any Advance or Letter of Credit Obligation, extend the final scheduled maturity of any Advance, extend the scheduled date for payment (but not prepayments) of principal of or interest on any Advance (other than as provided in Section 2.17), forgive any such payment or any part thereof or reduce the rate of interest on any Advance, in each case without the prior written consent of each Lender affected thereby, (B) increase the amount or extend the termination date of the Commitment of any Lender (other than as provided in Section 2.17 or 2.19) or reduce or extend the date for payment of the Commitment Fees or other amounts payable under this Agreement to any Lender, in each case without the prior written consent of such Lender or (C) amend or modify the provisions of this Section 8.01(b) or Section 8.05 or the definition of the term “Required Lenders”, without the prior written consent of each Lender; and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Paying Agent or the Issuing Banks hereunder without the prior written consent of the Paying Agent or the Issuing Banks, respectively. 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 consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other Loan Document shallthan Defaulting Lenders), except as that (x) the Commitment of any Defaulting Lender may not be otherwise stated in increased or extended without the consent of such waiver Lender and (y) any waiver, amendment or approval, be applicable to subsequent transactions. No waiver modification requiring the consent of all Lenders or approval hereunder each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require any similar or dissimilar waiver or approval thereafter the consent of such Defaulting Lender.
(c) Notwithstanding anything to be granted hereunder. The rights, powers and remedies the contrary contained herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative AgentDocument, the Issuer or authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower 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 Paying Agent in accordance with Article VI for the benefit of all the Lenders and the Issuing Banks; provided, however, that the foregoing shall not prohibit (a) the Paying Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Paying 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) hereunder and under the other Loan Documents, (c) any Lender would from exercising setoff rights in accordance with Section 8.04 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any debtor relief law; and provided, further, that if at any time there is no Person acting as Paying Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise haveascribed to the Paying Agent pursuant to Article VI and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Kroger Co)
Waivers, Amendments, Etc. The provisions of this Agreement and of each other Loan Document may from time to time be amended, modified or waived, if such amendment, modification or waiver is in writing and consented to by the Borrowers and the Agent (acting only at the direction or with the authority of the Required Lenders); provided, however, that no such amendment, modification or waiver which would:
(a) Neither this Agreement nor modify any other Loan Document nor requirement hereunder that any terms hereof particular action be taken by all the Lenders or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective parties thereto and the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of Lenders shall be effective unless consented to by each Lender Lender;
(other than a Defaulting Lenderb) with Obligations being directly affected thereby, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of or the Revolving Loan Commitment Percentage of any Lender, and that an increase reduce any fees described in Article III, change the available portion time for payment of fees to the Lenders described in Article III, release all or any Revolving Loan Commitment of any Lender shall not constitute an increase substantial part of the Revolving Collateral except as otherwise specifically provided in any Loan Commitment Document, release or limit any Obligor from its guarantee obligations under Loan Document except as otherwise specifically provided therein or alter in any manner the pro rata sharing of such Lender)payments required hereunder, or (B) shall be made without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).affected thereby;
(c) No failure or delay on change the part definition of the Administrative Agent, the Issuer "Required Lenders" or any Lender in exercising any power, privilege or right under other provision of this Agreement or under any other Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, shall operate as a waiver thereof, nor shall any single or partial exercise be made without the consent of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.Lender;
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any other and of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and, (x) in the case of an amendment or modification, is consented to by the respective parties thereto Borrower and the Required Lenders or (y) in the case of a waiver of any obligation of the Borrower or compliance with any prohibition contained in this Agreement, is consented to by the Required Lenders; PROVIDED, provided HOWEVER, that no such changeamendment, modification or waiver, discharge or termination shall, without the consent of each Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, :
(i) which would modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to by each Lender;
(ii) which would modify this SECTION 9.1, change the definitions of "Required Lenders" or "Borrowing Base", increase the Expansion Loan Commitment Amount or the Revolving Credit Commitment Amount or change any Percentage for any Lender, reduce any fees payable to the Lenders described in ARTICLE 2 and ARTICLE 3, extend the final scheduled maturity of any Expansion Loan Commitment Termination Date or the Revolving Loan or Note or Credit Termination Date, extend the Stated Expiry Date date of reduction of the Expansion Loan Commitment specified in Section 3.3.4(f), extend the expiry date of any Letter of Credit beyond the Maturity Revolving Credit Termination Date, or subject any Lender to any additional obligations shall be made without the consent of each Lender;
(iii) which would extend the due date for, or reduce the rate amount of, any payment or extend the time prepayment of payment principal of or interest on any Loan (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (iion any Loan) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) be made without the consent of the Issuerholder of the Note evidencing such Loan; or
(iv) which would affect adversely the interests, amendrights, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights compensation or obligations with respect to Letters of Creditthe Agent QUA the Agent shall be made without consent of the Agent.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender or the holder of any Note in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, any Lender, or the Issuer or holder of any Lender Note under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.
(c) Neither any Lender nor the Agent shall be under any obligation to marshal any assets in favor of the Borrower or any other party or against or in payment of any or all of the Obligations. The rightsRecourse for security shall not be required at any time. To the extent that the Borrower makes a payment or payments to the Agent or the Lenders, powers or the Agent or the Lenders enforce their security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently for any reason invalidated, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies herein therefor, shall be revived and continued in full force and effect as if such payment had not been made or in any other Loan Document expressly provided are cumulative and such enforcement or setoff had not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveoccurred.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any ------------------------ (including the Schedules hereto (other than Schedule II hereto, which may be --------- ----------- modified in accordance with Section 10.2 or Section 10.11.1)) and of each other ------------ --------------- Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided however, that no such changeamendment, waiver, discharge -------- ------- modification or termination waiver shall, :
(a) modify this Section 10.1 without the consent of each all Lenders; ------------
(b) increase the aggregate amount of any Lender's Percentage of any Commitment Amount, increase the aggregate amount of any Loans required to be made by a Lender pursuant to its Commitments, extend the final Commitment Termination Date of Credit Extensions made (other than or participated in) by a Defaulting Lender or reduce any fees described in Article III payable to any ----------- Lender without the consent of such Lender) with Obligations being directly affected thereby, ;
(ic) extend the final due date for any scheduled maturity repayment of principal of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateLender's Loan, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) of or rate of interest on any Lender's Loan or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of date on which interest or fees for purposes are payable in respect of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptsuch Lender's Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood and agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events ----------- ----------- amounts owing with respect to the Loans and other Obligations shall only require the vote of Default or the Required Lenders (as defined in clause (b) of a mandatory reduction the ---------- definition thereof));
(d) reduce the percentage set forth in the Revolving Loan Commitment Amount shall not constitute an increase definition of the Revolving Loan Commitment of "Required Lenders" or any Lender, and requirement hereunder that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the IssuerStated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in this Agreement or another Loan Document, amendrelease (i) any Guarantor from its obligations under a Guaranty or (ii) all or any substantial part of the collateral under the Loan Documents, modify or waive any provision in either case without the consent of Sections 2.1.2all Lenders; or
(g) affect adversely the interests, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vithe Administrative Agent), inclusive, of the first proviso to Section 10.1(aor any Issuer (in its capacity as Issuer), unless consented to by the consent of Administrative Agent or such Issuer, as the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the any Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower or any other Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the any Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and by the Required Majority Lenders (or the Administrative Agent with the consent in writing of the Majority Lenders), provided provided, however, that no such change, waiver, discharge or termination supplemental agreement shall, without the consent of each Lender all of the Lenders: (other than a Defaulting Lender) with Obligations being directly affected thereby, (ia) extend the final scheduled maturity of any Revolving Loan or Note or extend reduce the Stated Expiry Date of any Letter of Credit beyond the Maturity Dateprincipal amount thereof, or reduce the rate or extend the time of payment of interest thereon; (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iiib) reduce the percentage specified in the definition of Required LendersMajority Lenders or required to direct the Administrative Agent and/or the U.S. Collateral Agent; (c) extend the Final Maturity Date or the Commitment Termination Date, (iv) consent or reduce the amount or extend the payment date for, any payments required hereunder, or increase the amount of the Commitment of any Lender hereunder, or change any term or provision of this Agreement relating to the assignment Stage 1 Project or transfer by permit the Borrower of any of to assign its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, Agreement except as provided in Section 7.1.9 12.8; (d) release any material Collateral or in connection with a Disposition or refinancing that is otherwise permitted pursuant to terminate the terms of this AgreementCredit Parties’ obligations under any Security Document; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (Be) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of amend this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) 12.1. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower a Credit Party in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsNotwithstanding anything in this Section to the contrary, powers and remedies herein no amendment or waiver of Section 10 shall in any other Loan Document expressly provided are cumulative event be effective unless it is in writing and not exclusive is signed by each of any rights, powers or remedies which the Administrative Agent and the U.S. Collateral Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Lithium Americas Corp.)
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by Holdings, the respective parties thereto Borrowers and the Required Lenders; provided, provided however, that no such changeamendment, waivermodification or waiver shall:
(a) modify this Section without the consent of all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender pursuant to its Commitments, discharge extend the final Commitment Termination Date of Credit Extensions made (or termination shallparticipated in) by a Lender or reduce any fees described in Article III payable to any Lender without the consent of such Lender;
(c) extend any date of payment of principal for any Lender's Loan, or reduce or forgive the principal amount of, rate of interest or fees on any Loan or Reimbursement Obligations (which shall in each case include the conversion of all or any part of the Obligations into equity of any Obligor), or extend the date on which interest or fees are payable in respect of such Loan or Reimbursement Obligation, in each case, without the consent of each the Lender (other than which has made such Loan or, in the case of a Defaulting Lender) with Obligations being directly affected therebyReimbursement Obligation, (i) extend the final scheduled maturity of any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity DateIssuer owed, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof and those Lenders participating in, such Reimbursement Obligation (it being understood and agreed, however, that any amendment or modification vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of amounts owing with respect to the financial definitions in this Agreement Loans and other Obligations shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as only require the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, except, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent vote of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the 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 Revolving Loan Commitment Amount shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such LenderLenders), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege or right preclude any other or further exercise thereof or the exercise of any other power, privilege or right. No notice to or demand on the Borrower in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.;
Appears in 1 contract
Samples: Credit Agreement (WRC Media Inc)
Waivers, Amendments, Etc. (a) Neither The provisions of this Agreement nor any and of each other Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to in writing by the respective parties Borrower and each Obligor party thereto and the Required Lenders; provided, however, that no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action be taken by all the Lenders or by the Required Lenders shall be effective unless consented to in writing by each Lender;
(b) modify this Section 10.1 or clause (a) of Section 10.10, change the definition of “Required Lenders”, increase any Commitment Amount or the Percentage of any Lender, extend the due date for, or reduce the amount of any fees described in Article III, release any Co-Borrower from its obligations under the Subsidiary Guaranty, release Parent from its obligations under the Parent Guaranty and Pledge Agreement, extend the Stated Maturity Date, or release collateral, unless consented to in writing by each Lender, provided, however (i) the Agent shall release collateral as otherwise specifically provided in this Agreement (including, but not limited to, Section 7.2.9), the Subsidiary Guaranty or either Pledge and Security Agreement); and (ii) the Agent shall, at the request of the Borrower and with the consent of the Required Lenders, release additional collateral with an aggregate book value not to exceed $5,000,000 during any fiscal year of Borrower, provided that no such change, waiver, discharge or termination shall, without a reasonably equivalent amount of cash proceeds is generated and paid to the consent of each Lender Lenders as Net Disposition Proceeds;
(other than a Defaulting Lender) with Obligations being directly affected thereby, (ic) extend the final due date for, or reduce the amount of, any scheduled maturity repayment or prepayment of principal of or interest on any Revolving Loan or Note any Reimbursement Obligation (or extend reduce the principal amount of or rate of interest on any Loan or any Reimbursement Obligation) unless consented to in writing by each Lender or, in the case of a Reimbursement Obligation, the Issuer owed, and those Lenders participating in, such Reimbursement Obligation;
(d) increase the Stated Expiry Date Amount of any Letter of Credit beyond unless consented to by the Maturity DateIssuer of such Letter of Credit;
(e) affect adversely the interests, rights or reduce obligations of the rate Agent or extend the time of payment of interest Issuer (except in connection with a waiver of applicability of any post-default increase in interest rates) its capacity as Agent or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (iIssuer), so long unless consented to in writing by the Agent or the Issuer, as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), case may be;
(iif) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in change the definition of Required Lenders“Borrowing Base Amount”, (iv) consent to the assignment “Eligible Account”, “Eligible Inventory” or transfer by Borrower of “Net Asset Value”, or any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptdefined terms used therein, in each case, as provided case if the effect of such change would be to require a Lender to make or participate in Section 7.1.9 or a Credit Extension in connection with a Disposition or refinancing an amount that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect without the consent of greater than such Lender would have had to make or participate in immediately prior to such amendment, modification or waiver unless consented to in writing by each Lender; or
(it being understood that waivers g) change or modifications waive the application of conditions precedentclause (a)(ii) and clause (b)(ii) of Section 2.1.2 or clause (b)(ii) of Section 2.1.3, covenantsand clause (b) of Section 5.2.1, Defaults or Events of Default or of a mandatory reduction respectively, unless consented to in the Revolving Loan Commitment Amount shall not constitute an increase writing by Lenders having at least 70% of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), or (B) without the consent of the Issuer, amend, modify or waive any provision of Sections 2.1.2, 2.1.4, or 2.6, or alter its rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by clauses (i) through (vi), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) Amount. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower or another Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFor purposes of this Section 10.1, powers the Agent shall have primary responsibility, together with the Borrower, in the negotiation, preparation, and remedies herein documentation relating to any amendment, modification or in waiver of this Agreement, any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise haveother agreement or document related hereto or thereto contemplated pursuant to this Section.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof may from time to time be amended, modified or thereof may be changed, waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Obligor or Obligors party to such Loan Document and the Required Lenders; provided that, provided that no such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shall, this Section without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected thereby, (i) pursuant to its Commitments or extend the final scheduled maturity of Stated Maturity Date for any Revolving Loan or Note or extend the Stated Expiry Date of any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loans, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loans, reduce any fees described in Article III payable to any Lender, and that an increase waive payment Defaults or extend the scheduled date on which principal, interest or fees are payable in the available portion of any Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) change (either positive or alter negative) the percentage set forth in the definition of “Required Lenders” or modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) except as otherwise expressly provided in a Loan Document, release (i) the any Obligor from its Obligations under the Loan Documents to which such Obligor is a party or (ii) any collateral (unless in connection with a Disposition permitted under Section 7.2.10) under the Loan Documents, in each case without the consent of all Lenders; or
(f) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vithe Administrative Agent), inclusive, of the first proviso to Section 10.1(a), the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) . No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rightsFurther, powers notwithstanding anything to the contrary contained in Section 10.1, if within sixty days following the effective date of any Loan Document, the Administrative Agent and remedies herein the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial 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 such amendment shall become effective without any further action or consent of any other party to any Loan Document expressly provided are cumulative and if the same is not exclusive objected to in writing by the Required Lenders within five Business Days following receipt of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise havenotice thereof.
Appears in 1 contract
Waivers, Amendments, Etc. (a) Neither this Agreement nor any other The provisions of each Loan Document nor any terms hereof (other than Hedging Agreements, Letters of Credit or thereof the Fee Letter, which shall be modified only in accordance with their respective terms, or as otherwise permitted under Section 9.12 hereof) may from time to time be changedamended, modified or waived, discharged if such amendment, modification or terminated unless such change, waiver, discharge or termination waiver is in writing signed and consented to by the respective parties thereto Borrower and the Required Lenders; provided, provided that no other such changeamendment, waivermodification or waiver shall:
(a) modify clause (b) of Section 4.7, discharge Section 4.8 (as it relates to sharing of payments) or termination shallthis Section, in each case, without the consent of each all Lenders;
(b) increase the aggregate amount of any Credit Extensions required to be made by a Lender (other than a Defaulting Lender) with Obligations being directly affected therebypursuant to its Commitments, (i) extend the final scheduled maturity Commitment Termination Date of any Revolving Loan Credit Extensions made (or Note participated in) by a Lender or extend the final Stated Expiry Maturity Date of for any Letter of Credit beyond the Maturity Date, or reduce the rate or extend the time of payment of interest (except in connection with a waiver of applicability of any post-default increase in interest rates) or fees thereon or reduce the principal amount thereof (except to the extent repaid in cash) or extend the time for payment thereof (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in any rate of interest or fees for purposes of this clause (i), so long as the primary purpose of the respective amendments or modifications to the financial definitions was not to reduce the interest or fees payable hereunder), (ii) amend, modify or waive any provision of this Section 10.1, (iii) reduce the percentage specified in the definition of Required Lenders, (iv) consent to the assignment or transfer by Borrower of any of its rights and obligations under this Agreement, (v) release Guarantor from the Guaranty, or (vi) release any Subsidiary Guarantor from the Subsidiary Guaranty or release all or any material portion of the Collateral, exceptLender’s Loan, in each case, as provided in Section 7.1.9 or in connection with a Disposition or refinancing that is otherwise permitted pursuant to the terms of this Agreement; provided further, that, in addition to the consent of the Required Lenders required above, no such change, waiver, discharge or termination shall (A) increase the Revolving Loan Commitments of any Lender over the amount thereof then in effect case without the consent of such Lender (it being understood agreed, however, that waivers or modifications any vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3 of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in amounts owing with respect to the Revolving Loan Commitment Amount Loans and other Obligations shall not constitute an increase only require the vote of the Revolving Loan Commitment Required Lenders);
(c) reduce the principal amount of or reduce the rate of interest on any Lender’s Loan, and that an increase reduce any fees described in the available portion of any Revolving Loan Commitment of Article 3 payable to any Lender shall not constitute an increase of or extend the Revolving Loan Commitment date on which principal, interest or fees are payable in respect of such Lender)’s Loans, or (B) in each case without the consent of such Lender (provided that, the Issuer, amend, modify or vote of Required Lenders shall be sufficient to waive any provision of Sections 2.1.2, 2.1.4the payment, or 2.6reduce the increased portion, of interest accruing under Section 3.2.2);
(d) reduce the percentage set forth in the definition of “Required Lenders” or alter modify any requirement hereunder that any particular action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in a Loan Document, release (i) either Borrower from its Obligations under the Loan Documents or any Guarantor from its obligations under a Guaranty or (ii) all or substantially all of the collateral under the Loan Documents, in each case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations with respect to Letters of Credit.
(b) If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement Administrative Agent (in its capacity as contemplated by clauses (i) through (vithe Administrative Agent), inclusive, of the first proviso to Section 10.1(aany Issuer (in its capacity as Issuer), or the consent of Swing Line Lender (in its capacity as Swing Line Lender), unless consented to by the Required Lenders is obtained but Administrative Agent, such Issuer or the consent of one or more of such other Lenders whose consent is required is not obtainedSwing Line Lender, then as the Borrower shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described below, to replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 4.4 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination; provided further, that in any event the 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 the second proviso to Section 10.1(a).
(c) case may be. No failure or delay on the part of the Administrative Agent, the Issuer or any Lender Secured Party in exercising any power, privilege power or right under this Agreement or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, privilege power or right preclude any other or further exercise thereof or the exercise of any other power, privilege power or right. No notice to or demand on the Borrower any Obligor in any case shall entitle it to any notice or demand in similar or other circumstances. No waiver or approval by the Administrative Agent, the Issuer or any Lender Secured Party under this Agreement or any other Loan Document shall, except as may be otherwise stated in such waiver or approval, be applicable to subsequent transactions. No waiver or approval hereunder shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder. The rights, powers and remedies herein or in any other Loan Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Issuer or any Lender would otherwise have.
Appears in 1 contract
Samples: First Lien Credit Agreement (Energy Xxi (Bermuda) LTD)
