Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. (b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
Appears in 3 contracts
Samples: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC), Credit Agreement (Dole Food Co Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank L/C Issuer or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks L/C Issuers and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank L/C Issuer may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)an Incremental Amendment, or as provided in Section 2.23 with respect to the extension of any Applicable Maturity Date, or as provided in Section 2.14, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby(provided that an amendment, it being understood that a modification, waiver of or consent with respect to any condition precedent set forth in Section 4.02 or the waiver precedent, covenant, mandatory prepayment, Event of any Default or mandatory prepayment Default shall not constitute an increase of any in the Commitment of any Lender), (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided thereby (except that (x) neither (A) any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) nor (B) any amendment entered into pursuant to the terms of Section 2.14(b) shall constitute a reduction in the rate of interest or fees for purposes of this clause (ii) even if the effect of such amendment or modification would be to reduce the rate of interest on any Loan or to reduce any fee payable hereunder and (y) only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) reduce or to waive any obligation of the Borrowers any Borrower to pay interest or any other amount at the applicable default rate set forth thereinin Section 2.13(c) or to amend Section 2.13(c)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C DisbursementLoan, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected therebythereby (it being understood and agreed that no amendment, modification or waiver of, or consent to departure from, any condition precedent, covenant, Default, Event of Default or mandatory prepayment, in any such case, shall be considered a postponement or delay of any date fixed for payment by this Agreement or any other Loan Document), (iv) change Section 2.17(b2.09(d) or 2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the ratable reduction of Commitments or the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change the payment waterfall provisions of Section 2.22(b) or 7.03 without the written consent of each Lender, (vi) waive any condition set forth in Section 4.03 in respect of the making of a Revolving Loan without the written consent of the Required Revolving Lenders (it being understood and agreed that any amendment or waiver of, or any consent with respect to, any provision of this Agreement (other than any waiver expressly relating to Section 4.03) or any other Loan Document, including any amendment of any affirmative or negative covenant set forth herein or in any other Loan Document or any waiver of a Default or an Event of Default, shall not be deemed to be a waiver of a condition set forth in Section 4.03 for purposes of this Section 9.02), (vii) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of ”, “Alternative CurrenciesRequired Revolving Lenders”, “Required Term Lenders”, “Required Term Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender directly affected thereby (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Loans are included on the Effective Date), (viviii) (x) release the Parent Borrower or the Opco Borrower from its obligations under Article X, (y) release any Designated Subsidiary Borrower from its obligations hereunder, except in connection with (1) the termination of a Designated Subsidiary Borrower’s status as such under Section 2.24, (2) a merger or consolidation or other transaction permitted under Section 6.04 or (3) a Disposition permitted under Section 6.05 (provided that, in the case of the foregoing clauses (1), (2) and (3), the Secured Obligations of the applicable Designated Subsidiary Borrower shall have been paid and satisfied in full in cash in accordance with Section 2.11(e)) or (z) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and Guaranty (other than in accordance with the Foreign Guarantee and Security Agreement terms of Section 8.08, 9.14 or 9.20), in each case, without the written consent of each Lender, (viiix) release or terminate the Company Guaranty prior to the Security Date, (x) except as provided in Section 8.08, 9.14 or 9.20 or in any Collateral Document, release all or substantially all of the Collateral from Collateral, without the Lien written consent of each Lender, (xi) except as provided in Section 8.08, subordinate the Collateral Documents, Obligations hereunder to any other Debt or other obligation without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (xxii) amend Section 1.06 or the definition of “Supermajority LendersAgreed Currencies”, “Alternative Currency Daily Rate” or (y) increase any advance rate or otherwise amend any “Alternative Currency Term Rate” without the written consent of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood Lender directly affected thereby; provided further that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of (x) the Administrative Agent, any Issuing Bank L/C Issuer or the any Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank such L/C Issuer or the such Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with it being understood that any change to Section 2.22 shall require the consent of the other but Administrative Agent, each L/C Issuer and each Swingline Lender) or (y) an L/C Issuer under any Issuer Document relating to any Letter of Credit issued or to be issued by it without the prior written consent of such L/C Issuer. Notwithstanding the foregoing, (A) no consent with respect to any amendment, waiver or other Personmodification of this Agreement shall be required of any Defaulting Lender, amendexcept with respect to any amendment, modify waiver or supplement other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly and adversely affected by such amendment, waiver or other modification in a non-ratable manner; and (B) as to any amendment, amendment and restatement or other modification otherwise approved in accordance with this Section, it shall not be necessary to obtain the consent or approval of any Lender that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Loans, so long as such Lender receives payment in full of the principal of and interest on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (x) to cure add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Amendment) to this Agreement and to permit 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 Revolving Loans, the initial Term Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any ambiguitydetermination of the Required Lenders and Lenders (it being understood and agreed that any such amendment (i) in connection with new Commitments or increases to the Commitments and/or Incremental Term Loans in accordance with Section 2.20 or (ii) in connection with any extension in accordance with Section 2.23 shall, typographical in any such case, require solely the consent of the parties prescribed by such Section and shall not require the consent of the Required Lenders).
(d) [Reserved].
(e) If, in connection with any proposed amendment, waiver or technical errorconsent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, defect but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Opco Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided that, concurrently with such replacement, (i) another bank or inconsistencyother entity which is reasonably satisfactory to the Opco Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, (ii) the Opco Borrower shall pay to such Non-Consenting Lender in Same Day Funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Opco Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender and (iii) such Non-Consenting Lender shall have received the outstanding principal amount of its Loans. Each party hereto agrees that (a) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Opco Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender; provided that any such documents shall be without recourse to or warranty by the parties thereto.
(f) Notwithstanding anything to the contrary herein, no Defaulting Lender if the Administrative Agent and the Opco Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Opco Borrower shall have be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any right to approve or disapprove any amendment, waiver further action or consent hereunder which does not require of any other party to this Agreement.
(g) Notwithstanding anything to the contrary herein, in connection with the designation of a Designated Subsidiary Borrower in accordance with Section 2.24 of this Agreement, the Administrative Agent and the Opco Borrower may amend the Loan Documents to address local law considerations to the extent reasonably necessary or customary in the applicable jurisdiction, and such amendment shall become effective without any further action or consent of each affected Lender any other party to this Agreement.
(it being understood that h) Notwithstanding any Commitments or Loans held or deemed held by any Defaulting Lender shall provision herein to the contrary, this Agreement may be excluded for a vote amended with the written consent of the Administrative Agent, the Opco Borrower and the Appropriate Lenders hereunder requiring any consent directly affected thereby to amend the definition of less than all affected Lenders)“Alternative Currency”, “Alternative Currency Daily Rate” or “Alternative Currency Term Rate” or Section 1.06 solely to add additional currency options and the applicable interest rate with respect thereto, in each case solely to the extent permitted pursuant to Section 1.06.
Appears in 3 contracts
Samples: Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Cummins Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company a Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers a Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, or (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Company may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistencyinconsistency and such amendment shall become effective without any further action or the consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans (as determined by the applicable Borrower in good faith), except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
Appears in 3 contracts
Samples: Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.20, 2.21 and 2.22 and subject to clauses (with respect to such Loan Document)c) and (f) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided thereby ((x) other than any reduction of any rate of interest accrued pursuant to Section 2.13(c) and (y) except that only the consent any amendment or modification of the Required Lenders financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at not constitute a reduction in the rate set forth thereinof interest or fees for purposes of this clause (ii)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected therebythereby (other than any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.11, in each case which shall only require the approval of the Required Lenders), (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender (it being understood that, notwithstanding the foregoing, solely with the consent of the parties prescribed by Section 2.20, 2.21 and 2.22, as applicable, to be parties to any respective Incremental Term Loan Amendment, Extension Amendment and/or Refinancing Amendment, Incremental Term Loans, Extended Term Loans and/or Refinancing Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Revolving Commitments and the Revolving Loans are included on the Effective Date), (vi) release all or substantially all of the Subsidiary Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Subsidiary Guaranty, in each case, without the written consent of each Lender, or (vii) except as provided in clause (d) of this Section or in any Collateral Document, release all or substantially all of the Collateral from the Lien of the Collateral DocumentsCollateral, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative any Agent, any the Issuing Bank Banks or the Swingline Lender hereunder without the prior written consent of the Administrative such Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.23 shall require the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender); provided further, that no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Borrower and any Issuing Bank regarding such Issuing Bank’s Letter of Credit Commitment or the respective rights and obligations between the Borrower and such Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing Bank, respectively. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (2i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other modification.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers Borrower (x) to add one or more credit facilities (in addition to the Incremental Facilities, Extensions, Replacement Revolving Loans and Refinancing Term Loans described in this Agreement) to this Agreement and to permit 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 Revolving Loans and the Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) The Lenders hereby irrevocably authorize the Collateral Agent, at its option and in its sole discretion, to release, and the Collateral Agent hereby agrees to release, any Liens granted to the Collateral Agent by the Loan Parties on any Collateral (i) upon the termination of all the Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations under clause (a) of the definition thereof in a manner satisfactory to the Administrative Agent, (ii) constituting property being sold or disposed of if the Borrower certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property leased to the Borrower or any Restricted Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Collateral Agent, at its option and in its discretion, (i) to subordinate any Lien on any assets granted to or held by the Collateral Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(e) or Section 6.02(f), (ii) in the event that the Borrower shall have advised the Collateral Agent that, notwithstanding the use by the Borrower of commercially reasonable efforts to obtain the consent of such holder (but without the requirement to pay any sums to obtain such consent) to permit the Collateral Agent to retain its liens (on a subordinated basis as contemplated by clause (i) above), the holder of such other Indebtedness requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by the Collateral Agent under any Loan Document be released, to release the Collateral Agent’s Liens on such assets or (iii) include holders of Other First Liens or (to the extent necessary or advisable under applicable local law) Junior Liens in the benefit of the Collateral Documents in connection with the incurrence of any Other First Lien Debt or Indebtedness permitted to be secured by Junior Liens and to give effect to any Intercreditor Agreement associated therewith.
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay or cause to be paid to such Non-Consenting Lender in same day funds on the day of such replacement (1) the outstanding principal amount of its Loans and participations in LC Disbursements and all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(f) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents (i) to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything , (ii) to integrate any Term Loan Commitments, Other Revolving Commitments, Term Loans and Other Revolving Loans in a manner consistent with Sections 2.20, 2.21 and 2.22 as may be necessary to establish such Term Loan Commitments, Other Revolving Commitment, Term Loans or Other Revolving Loans as a separate Class or tranche from the contrary hereinexisting Term Loan Commitments (if any), no Defaulting revolving Commitments, Term Loans (if any) or Revolving Loans, as applicable, and, in the case of Extended Term Loans, to reduce the amortization schedule of the related existing Class of Term Loans (if any) proportionately and (iii) to integrate any Other First Lien Debt.
(g) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be necessary to ensure that all Incremental Term Loans established pursuant to Section 2.20 will be included in an existing Class of Term Loans (if any) outstanding on such date (an “Applicable Date”), when originally made, are included in each Borrowing of outstanding Term Loans of such Class (the “Existing Class Loans”), on a pro rata basis, and/or to ensure that, immediately after giving effect to such new Term Loans (the “New Class Loans” and, together with the Existing Class Loans, the “Class Loans”), each Lender shall have any right holding Class Loans will be deemed to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent hold its Pro Rata Share (as defined below) of each affected Lender Class Loan on the Applicable Date (it being understood that but without changing the amount of any Commitments or Loans held or deemed held by any Defaulting such Lender’s Term Loans), and each such Lender shall be excluded for a vote deemed to have effectuated such assignments as shall be required to ensure the foregoing. The “Pro Rata Share” of any Lender on the Lenders hereunder requiring any consent Applicable Date is the ratio of less than (1) the sum of such Lender’s Existing Class Loans immediately prior to the Applicable Date plus the amount of New Class Loans made by such Lender on the Applicable Date over (2) the aggregate principal amount of all affected Lenders)Class Loans on the Applicable Date.
Appears in 3 contracts
Samples: Credit Agreement (Myriad Genetics Inc), Credit Agreement (Myriad Genetics Inc), Credit Agreement (Myriad Genetics Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder 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 right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on the Borrower or Holdings in any case shall entitle the Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.18 with respect to such Loan Documentany Incremental Revolving Facility Amendment or Incremental Term Facility Amendment (including to provide for provisions relating to the issuance of letters of credit and swingline loans and provisions with respect to “defaulting lenders”), Section 2.19 with respect to any Refinancing Amendment, Section 6.14 with respect to a change in the fiscal year of Holdings and the Borrower or Section 2.12(b) with respect to an alternate rate of interest, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in paragraphs (a) and (b) of Section 4.02 or the waiver of any Default Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender), (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the reimbursement obligations of the Borrower in respect of the LC Exposure or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected therebythereby (it being understood that any change to the definition of First Lien Leverage Ratio, Net First Lien Leverage Ratio, Secured Leverage Ratio, Total Leverage Ratio or in the component definitions thereof shall not constitute a reduction of interest or fees); provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay default interest at the rate set forth thereinpursuant to Section 2.11(c), (iii) postpone the scheduled maturity of any Loan, or the date of any scheduled amortization payment of the principal amount of any Term Loan under Section 2.08 or L/C the applicable Refinancing Amendment, or the reimbursement date with respect to any LC Disbursement, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby, (iv) change Section 2.17(b2.16(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby(other than a Defaulting Lender), (v) change any of the provisions of this Section 9.02without the written consent of each Lender directly and adversely affected thereby, (vi) change the percentage set forth in the definition of “Required Lenders” or the definition of ”, “Alternative CurrenciesMajority in Interest” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, (vi) release all or substantially all of as the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lendercase may be), (vii) release all or substantially all the value of the Guarantees under the Guarantee Agreement (except as expressly provided in the Guarantee Agreement) without the written consent of each Lender (other than a Defaulting Lender) (except as expressly provided in the Security Documents), (viii) release all or substantially all the Collateral from the Lien Liens of the Collateral Security Documents, without the written consent of each Lender or (viiiother than a Defaulting Lender), (ix) contractually subordinate change any provisions of any Loan Document in a manner that by its terms adversely affects the payment rights in respect of the Obligations payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shallClass, without the written consent of Lenders (other than a Defaulting Lender) holding a Majority in Interest of the Supermajority Lendersoutstanding Loans and unused Commitments of each affected Class, or (x) amend change the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any rights of the following definitionsTerm Lenders to decline mandatory prepayments as provided in Section 2.09 or the rights of any Additional Lenders of any Class to decline mandatory prepayments of Term Loans of such Class as provided in the applicable Refinancing Amendment, without the written consent of a Majority in each case Interest of the effect Term Lenders or Additional Lenders of which would be to increase the amounts available for borrowing hereunder: Borrowing Basesuch Class, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent)as applicable; provided, further, that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Swingline Lender or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Swingline Lender or such Issuing Bank or the Swingline LenderBank, as the case may be, and (B) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by Holdings, the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment. Notwithstanding the foregoing, (a) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrower (i) 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 and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion and (b) guarantees, collateral security documents and related documents executed by Foreign Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (i) to comply with local law or advice of local counsel, (ii) to cure ambiguities or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents. Notwithstanding anything to the contrary, only the consent of the Required Revolving Lenders shall be necessary to (1) waive or consent to a waiver of an Event of Default with respect to the Financial Performance Covenant or waive or amend the conditions set forth in Section 4.02 (and Section 4.02 may not be waived or amended in a manner that affects the making of any Revolving Borrowing without the consent of the Required Revolving Lenders) or (2) modify or amend the Financial Performance Covenant (and the Financial Performance Covenant may not be modified or amended without the consent of the Required Revolving Lenders) or Section 7.02 (including, in each case, the related definitions, solely to the extent such definitions are used in such Sections (but not otherwise)) or this sentence.
(c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders (and, to the extent any Proposed Change requires the consent of Lenders holding Loans of any Class pursuant to clause (iv), (ix) or (x) of paragraph (b) of this Section, the consent of a Majority in Interest of the outstanding Loans and unused Commitments of such Class) to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (b) of this Section being referred to as a “Non-Consenting Lender”), then, so long as the Lender that is acting as Administrative Agent is not a Non-Consenting Lender, the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and, if a Revolving Commitment is being assigned, each Issuing Bank and the Swingline Lender), which consent shall not unreasonably be withheld, (b) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding par principal amount of its Loans and participations in LC Disbursements and Swingline Lenders, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including pursuant to Section 2.09(a)(i)) from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b). Each party hereto agrees that an assignment required pursuant to this Section 9.02(c) may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the Borrowers may, with assignee and that the consent of Non-Consenting Lender required to make such assignment need not be a party thereto.
(d) Notwithstanding anything in this Agreement or the other but Loan Documents to the contrary, the Revolving Commitments and Revolving Exposure of any Lender that is at the time a Defaulting Lender shall not have any voting or approval rights under the Loan Documents and shall be excluded in determining whether all Lenders (or all Lenders of a Class), all affected Lenders (or all affected Lenders of a Class), a Majority in Interest of Lenders of any Class, the Required Lenders or the Required Revolving Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 9.02); provided that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any other Personwaiver, amend, modify amendment or supplement this Agreement and modification requiring the consent of all Lenders or each affected Lender that affects any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender more adversely than other affected Lenders shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any such Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)Lender.
Appears in 3 contracts
Samples: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder 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 right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on Bidco or Holdings in any case shall entitle Bidco or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.19 with respect to such Loan Document)any Incremental Facility Amendment, Section 2.20 with respect to any Refinancing Amendment or Section 2.23 with respect to any Permitted Amendment, neither this Agreement nor Agreement, any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, Bidco, the Borrowers Borrowers, the Administrative Agent (to the extent that such waiver, amendment or modification does not affect the rights, duties, privileges or obligations of the Administrative Agent under this Agreement, the Administrative Agent shall execute such waiver, amendment or other modification to the extent approved by the Required Lenders) and the Required Lenders (other than with respect to any waiver, amendment or modification contemplated in the first proviso below) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default Default, Event of Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender), (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation reimbursement obligations of the Borrowers to pay interest for the LC Exposure at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) time (it being understood that the establishment, modification or elimination a waiver of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).any
Appears in 2 contracts
Samples: Credit Agreement (Viasat Inc), Credit Agreement (Viasat Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank Lender or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Lender and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Credit Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02the Intercreditor Agreement, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank Lender may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document provision hereof may be waived, amended or modified except pursuant to the terms of Section 7 of the Intercreditor Agreement.
(c) None of the Collateral Documents nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent terms of Section 7 of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Intercreditor Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
Appears in 2 contracts
Samples: Credit Agreement (Affinity Group Holding, Inc.), Credit Agreement (Affinity Group Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.0210.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise in connection with the execution and delivery by the Borrower to the Administrative Agent of a Certificate of Leverage Ratio Adjustment (which shall require no further action on the part of the parties hereto), which shall only have the effect of reducing the Leverage Ratio set forth in this Agreement or any other Loan Document (with respect Section 7.09(b) to such Loan Document)2.75 to 1.00, neither this Agreement nor any other of the Loan Document Documents nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Revolving Commitment of any Lender or the aggregate amount of any credit extension required to be made by any Revolving Lender pursuant to its Commitment and the terms of this Agreement, in each case without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.19(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) release any Material Subsidiary from its obligations under its Subsidiary Guaranty, without the written consent of each Lender, (vi) release any material portion of the Collateral without the written consent of each Lender and each party otherwise required to consent thereto pursuant to the terms of the Intercreditor Agreement, except as otherwise expressly permitted hereby, and provided that the Administrative Agent and the Collateral Agent shall release (without consent from the Lenders or any other Person) any Collateral sold, transferred or otherwise disposed of as permitted by Section 7.03 hereof, (vii) waive any of the conditions set forth in Section 4.01 to the making of the Loans without the consent of each Lender affected thereby, or (viii) change any of the provisions of this Section 9.02, the definition of “Required Lenders” 10.02(b) or the definition of “Alternative Currencies” "Required Lenders" or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentshereunder, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lenderdirectly affected thereby; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative any Agent, any the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative such Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and be.
(2c) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary contained herein, no Defaulting Lender shall have the parties hereto hereby agree that all Hedging Agreements in effect from time to time between any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that or any Commitments of its Affiliates) and the Borrower or Loans held any of its Subsidiaries are independent agreements governed by the written provisions of such Hedging Agreements, which will remain in force and effect, notwithstanding any repayment, prepayment, acceleration, reduction, increase, or deemed held by any Defaulting Lender shall be excluded for a vote change in the terms of the Lenders hereunder requiring Credit Agreement or any consent of less than all affected Lenders)other Loan Document except as otherwise expressly provided in any such Hedging Agreement, and any payoff statement from the Administrative Agent relating to the Lender Indebtedness shall not apply to any such Hedging Agreement unless otherwise expressly consented or agreed to by the applicable Lender (or its Affiliate) and the Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Trinity Industries Inc), Credit Agreement (Trinity Industries Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereofthereof except as provided herein or in any Loan Document, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any party hereto therefrom shall in any event be effective unless the same shall be is permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, to the extent permitted by applicable Requirements of Law, neither the making of a any Loan or nor the issuance of a any Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in Subject to this Agreement or any other Loan Document Section 9.02(b) and Sections 9.02(c) and (with respect d) below and to such Loan DocumentSection 9.05(f), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders (or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders) (provided that the Administrative Agent has received written notice from the Borrower at least two Business Days prior to the anticipated date of effectiveness of any such amendment and the Administrative Agent shall promptly acknowledge any such amendment upon receipt; provided that if the Administrative Agent fails to provide such acknowledgement within five (5) Business Days of receipt, such amendment shall be deemed to have been acknowledged by the Administrative Agent; provided further, that regardless of the date that the Administrative Agent delivers its acknowledgement, the amendment shall be deemed effective at the time it is executed by the Required Lenders, the Borrower or the applicable Loan Party) or (ii) in the case of any other Loan Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan Party that is party thereto, with the consent of the Required Lenders; provided, that no such agreement shall that:
(iA) increase the Commitment of any Lender without the written consent of each Lender directly and adversely affected therebythereby (but not the consent of the Required Lenders) shall be required for any waiver, amendment or modification that:
(1) increases the Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section 2.22 in respect of which such Lender has agreed to be an Additional Lender); it being understood that a no amendment, modification or waiver of of, or consent to departure from, any condition precedent set forth in Section 4.02 or the waiver precedent, representation, warranty, covenant, Default, Event of any Default Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an increase of any Commitment of any such Lender, ;
(ii2) reduce reduces the principal amount of any Loan owed to such Lender or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each amount due to such Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of on any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each LenderInstallment Date; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishmentno amendment, modification or elimination waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of ReservesDefault, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify mandatory prepayment or otherwise affect the rights or duties mandatory reduction of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent Commitments shall constitute a reduction of the Administrative Agent, the relevant Issuing Bank or the Swingline principal owed to such Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).;
Appears in 2 contracts
Samples: Credit Agreement (CCC Intelligent Solutions Holdings Inc.), Credit Agreement (CCC Intelligent Solutions Holdings Inc.)
Waivers; Amendments. (a) No failure or delay by of the Administrative Agent, any Issuing Bank or any Lender Collateral Agent in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Collateral Agent and the Lenders other Secured Parties hereunder and under the other Loan Secured Transaction Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Guarantee and Security Agreement or any other Secured Transaction Document or consent to any departure by Holdings or the Company any Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had No notice or knowledge of demand on any Grantor in any case shall entitle such Default at the time.
(b) Except as otherwise set forth in this Agreement or Grantor to any other Loan Document (with respect to such Loan Document), neither or further notice or demand in similar or other circumstances. Neither this Guarantee and Security Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended amended, supplemented or modified otherwise modified, or any departure therefrom consented to, except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Grantors and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent Investors holding more than a majority of the Required Lenders; providedaggregate principal amount of the Senior Secured Notes then outstanding, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected therebywaive, it being understood that a waiver of any condition precedent set forth in Section 4.02 amend, supplement or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereonotherwise modify, or reduce any fees payable hereunderconsent to a departure to, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender Collateral Agent hereunder without the prior written consent of the Administrative Collateral Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
Appears in 2 contracts
Samples: Guarantee and Security Agreement (NeuMedia, Inc.), Guarantee and Security Agreement (NeuMedia, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrowers therefrom shall in any event be effective unless the same shall be permitted by paragraph subsection (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or in any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; providedprovided that, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth thereinDefault Rate, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b2.16(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) except in connection with a transaction permitted under this Agreement, release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, Lender or (vii) except in connection with a transaction permitted under this Agreement, release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent Agent, Holdings and the applicable Borrowers may, with the consent of each of the other foregoing but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency; provided, further, that any waiver, amendment or modification of this Agreement that (x) by its terms affects only the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) or (y) by its terms adversely affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by Holdings, the applicable Borrowers and the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 9.02 if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments Commitments, Loans or Loans the Revolving Credit Exposure held or deemed held by any Defaulting Lender shall be excluded for a vote in determining whether all Lenders, the Required Lenders, the Required Revolving Lenders or the Required Class Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 9.02); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the applicable Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders hereunder requiring holding such credit facilities in any determination of the Required Lenders. Notwithstanding the foregoing, guarantees, collateral documents, security documents, the First Lien Intercreditor Agreement, the Second Lien Intercreditor Agreement and any other intercreditor agreement entered into pursuant to the terms hereof, and related documents executed in connection with this Agreement may be in a form reasonably determined by the Administrative Agent or Collateral Agent, as applicable, and may be amended, modified, terminated or waived, and consent to any departure therefrom may be given, without the consent of less than all affected Lenders)any Lender if such amendment, modification, waiver or consent is given in order to (x) comply with local Law or (y) cause such guarantee, collateral document, security document or related document to be consistent with this Agreement and the other Loan Documents. The applicable Borrowers and the Administrative Agent may, without the consent of any other Lender, effect amendments to this Agreement and the other Loan Documents as may be necessary in the reasonable opinion of Holdings and the Administrative Agent to effect the provisions of Sections 2.18, 2.19, and 2.20.
Appears in 2 contracts
Samples: Amendment No. 1 (Genpact LTD), Credit Agreement (Genpact LTD)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.22 and Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise expressly permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (viii) except as provided in clauses (d) and (e) of this Section 9.02, or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, or (viix) release all or substantially all amend the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, “Alternative Currency” without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lenderdirectly affected thereby; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04.
(c) The Lenders hereby irrevocably authorize the Administrative Agent to, and the Administrative Agent shall release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon Payment in Full, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary (other than a Disposition to Holdings or any other Restricted Subsidiary) or to the extent a Loan Party is designated as an Unrestricted Subsidiary in accordance with Section 5.13, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that in addition to releases explicitly provided for in the preceding sentence the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of the greater of $10 million and 10% of Consolidated Total Assets for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. Notwithstanding anything herein to the contrary, a Subsidiary that is a Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Collateral Documents in Collateral owned by such Subsidiary shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. Upon any sale or other transfer by any Loan Party (other than to the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 9.02, the security interests in such Collateral created by the Collateral Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have A copy of any right to approve or disapprove any such amendment, waiver modification or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender supplement shall be excluded for a vote promptly delivered by the Administrative Agent to each Lender.
(f) In addition, notwithstanding the foregoing, this Agreement, including this Section 9.02, and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.22 to add any Incremental Term Loan Facility to this Agreement and (a) 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 (including the rights of the Incremental Term Loan Lenders hereunder requiring to share ratably in prepayments pursuant to Section 2.11), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any consent determination of less than all affected Lendersthe Required Lenders and (c) to amend other provisions of the Loan Documents so that the Incremental Term Loan Facility is appropriately incorporated (including this Section 9.02).
Appears in 2 contracts
Samples: Credit Agreement (Integral Ad Science Holding Corp.), Credit Agreement (Integral Ad Science Holding Corp.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document Subject to Section 2.14(b), (with respect to such Loan Documentc) and (d), and clauses (c) and (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.09(c) or Section 2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the ratable reduction of Commitments or pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change the payment waterfall provisions of Section 2.21(b) or 7.02 without the written consent of each Lender or (vi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentshereunder, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; providedit being understood that, that no such change, waiver, discharge or termination shall, without solely with the consent of the Supermajority Lendersparties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, (x) amend Incremental Term Loans may be included in the definition determination of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of Required Lenders on substantially the following definitions, in each case same basis as the effect of which would be to increase Commitments and the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, Revolving Loans are included on the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consentRestatement Effective Date); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.21 shall require the consent of the Administrative Agent, the Issuing Banks and (2) the Swingline Lender); provided further, that no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Borrower and any Issuing Bank regarding such Issuing Bank’s Letter of Credit Commitment or the respective rights and obligations between the Borrower and such Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing Bank, respectively. Notwithstanding the Borrowers mayforegoing, no consent with the consent respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other but without modification.
(c) Notwithstanding the consent of any other Personforegoing, amend, modify or supplement this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to cure add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit 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 Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) If the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or technical errorother defect in any provision of this Agreement or any other Loan Document, defect then the Administrative Agent and the Borrower shall be permitted to amend, modify or inconsistency. Notwithstanding anything supplement such provision to the contrary hereincure such ambiguity, no Defaulting Lender omission, mistake, typographical error or other defect, and such amendment shall have become effective without any right to approve or disapprove any amendment, waiver further action or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)other party to this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document Subject to Section 2.14(b), (with respect to such Loan Documentc) and (d), and clauses (c) and (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.09(c) or Section 2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the ratable reduction of Commitments or pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change the payment waterfall provisions of Section 2.21(b) or 7.02 without the written consent of each Lender or (vi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentshereunder, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; providedit being understood that, that no such change, waiver, discharge or termination shall, without solely with the consent of the Supermajority Lendersparties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, (x) amend Incremental Term Loans may be included in the definition determination of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of Required Lenders on substantially the following definitions, in each case same basis as the effect of which would be to increase Commitments and the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, Revolving Loans are included on the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consentRestatement Effective Date); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline LenderBank, as the case may be and (2) it being understood that any change to Section 2.21 shall require the consent of the Administrative Agent and the Borrowers mayIssuing Banks); provided further, that no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Borrower and any Issuing Bank regarding such Issuing Bank’s Letter of Credit Commitment or the respective rights and obligations between the Borrower and such Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing Bank, respectively. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other but without the consent modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other Personmodification referred to in clause (i), amend(ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, modify waiver or supplement other modification.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to cure add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit 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 Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) If the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or technical errorother defect in any provision of this Agreement or any other Loan Document, defect then the Administrative Agent and the Borrower shall be permitted to amend, modify or inconsistency. Notwithstanding anything supplement such provision to the contrary hereincure such ambiguity, no Defaulting Lender omission, mistake, typographical error or other defect, and such amendment shall have become effective without any right to approve or disapprove any amendment, waiver further action or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)other party to this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (ix) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, or (vix) release all or substantially all increase the aggregate Commitments in excess of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement $100 million, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04
(c) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of the all Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $1 million during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
Appears in 2 contracts
Samples: Credit Agreement (ExlService Holdings, Inc.), Credit Agreement
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on any Borrower or Holdings or Intermediate Holdings in any case shall entitle Intermediate Holdings, any Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)any Incremental Facilities, Section 2.21 with respect to any Refinancing Amendment and Section 2.24 with respect to any Permitted Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, Intermediate Holdings, the Borrowers Borrowers, the Administrative Agent (to the extent that such waiver, amendment or modification does not affect the rights, duties, privileges or obligations of the Administrative Agent under this Agreement, the Administrative Agent shall execute such waiver, amendment or other modification to the extent approved by the Required Lenders) and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default Default, Event of Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender), (ii) reduce the principal amount of any Loan or L/C LC Disbursement (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a reduction or forgiveness in principal) or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; thereby (it being understood that any change to the definition of First Lien Leverage Ratio or in the component definitions thereof shall not constitute a reduction of interest or fees), provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay default interest at the rate set forth thereinpursuant to Section 2.13(c), (iii) postpone the scheduled maturity of any Loan (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension of any maturity date), or the date of any scheduled amortization payment of the principal amount of any Loan under Section 2.10 or L/C the applicable Refinancing Amendment, or the reimbursement date with respect to any LC Disbursement, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby), (iv) change Section 2.17(b) or (c), Section 9.08(a) or any of the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) provisions of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly and adversely affected thereby, provided that any such change which is in favor of a Class of Lenders holding Loans maturing after the maturity of other Classes of Lenders (and only takes effect after the maturity of such other Classes of Loans or Commitments) will require the written consent of the Required Lenders with respect to each Class directly and adversely affected thereby, (v) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, as the case may be), (vi) release all or substantially all the value of the Guarantors from their obligations Guarantees under the U.S. Guarantee and Security Agreement and (except as expressly provided in the Foreign Guarantee and Security Agreement Loan Documents) without the written consent of each Lender (other than a Defaulting Lender), (vii) release all or substantially all of the Collateral from the Lien Liens of the Collateral Security Documents, without the written consent of each Lender (other than a Defaulting Lender) (except as expressly provided in the Loan Documents) or (viii) contractually subordinate change the payment of the Obligations to currency in which any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt Loan is denominated, without the written consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent)directly affected thereby; provided, further, that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the any Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the such Swingline Lender, as the case may be and be, (2B) the Administrative Agent and the Borrowers may, with the consent any provision of the other but without the consent of any other Person, amend, modify or supplement this Agreement and or any other Loan Document may be amended by an agreement in writing entered into by Holdings, Intermediate Holdings, the Borrowers and the Administrative Agent to cure any ambiguity, typographical or technical erroromission, defect or inconsistencyinconsistency and (C) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by Holdings, Intermediate Holdings, the Borrowers and the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding anything the foregoing, (a) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings, Intermediate Holdings and the Borrowers (i) 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 and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion, (b) this Agreement and other Loan Documents may be amended or supplemented by an agreement or agreements in writing entered into by the Administrative Agent and Holdings, Intermediate Holdings, the Borrowers or any Loan Party as to which such agreement or agreements is to apply, without the need to obtain the consent of any Lender, to include “parallel debt” or similar provisions, and any authorizations or granting of powers by the Lenders and the other Secured Parties in favor of the Administrative Agent, in each case required to create in favor of the Administrative Agent any security interest contemplated to be created under this Agreement, or to perfect any such security interest, where the Administrative Agent shall have been advised by its counsel that such provisions are necessary or advisable under local law for such purpose (with Holdings, Intermediate Holdings and the Borrowers hereby agreeing to, and to cause their subsidiaries to, enter into any such agreement or agreements upon reasonable request of the Administrative Agent promptly upon such request) and (c) upon notice thereof by Holdings to the contrary hereinAdministrative Agent with respect to the inclusion of any previously absent financial maintenance covenant, no this Agreement shall be amended by an agreement in writing entered into by the Borrowers and the Administrative Agent without the need to obtain the consent of any Lender to include such covenant on the date of the incurrence of the applicable Indebtedness to the extent required by the terms of such definition or section. Notwithstanding the foregoing, amendments to or waivers of (x) Section 6.10 (or any component definition thereof as it relates to Section 6.10) or (y) any other terms or provisions relating solely to the Revolving Commitments (or, subject to subclause (A) above, Swingline Commitments or Letters of Credit) will require only the written approval of a Majority in Interest of the outstanding Revolving Commitments and the Borrowers.
(c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (b) of this Section being referred to as a “Non-Consenting Lender”), then, so long as the Lender that is acting as Administrative Agent is not a Non-Consenting Lender, Holdings may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) Holdings shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and, if a Revolving Commitment is being assigned, each Principal Issuing Bank and Swingline Lender), which consent shall not unreasonably be withheld, (b) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts (including any amounts under Section 2.11(a)(i)), payable to it hereunder from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts) and (c) unless waived, the Borrowers or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b).
(d) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, the Revolving Commitments, Term Loans and Revolving Exposure of any Lender that is at the time (i) an Affiliated Lender (other than an Affiliated Debt Fund) or (ii) a Defaulting Lender shall not have any right voting or approval rights under the Loan Documents and shall be excluded in determining whether all Lenders (or all Lenders of a Class), all affected Lenders (or all affected Lenders of a Class) or the Required Lenders have taken or may take any action hereunder (including any consent to approve any amendment or disapprove waiver pursuant to this Section 9.02); provided that (x) the Commitment of any amendmentDefaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, waiver amendment or modification requiring the consent hereunder which does not of all Lenders or each affected Lender that affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
(e) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, each affected Affiliated Lender (it being understood that other than an Affiliated Debt Fund) hereby agrees that, if a proceeding under the United States Bankruptcy Code or any Commitments other Federal, state or foreign bankruptcy, insolvency, receivership or similar law shall be commenced by or against any Borrower or any other Loan Party at a time when such Lender is an Affiliated Lender, such Affiliated Lender irrevocably authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Loans held or deemed by such Affiliated Lender in any manner in the Administrative Agent’s sole discretion, unless the Administrative Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Loans held by any Defaulting it as the Administrative Agent directs; provided that such Affiliated Lender shall be excluded for a entitled to vote in accordance with its sole discretion (and not in accordance with the direction of the Administrative Agent) in connection with any plan of reorganization to the extent any such plan of reorganization proposes to treat any Secured Obligations held by such Affiliated Lender in a manner that is less favorable in any material respect to such Affiliated Lender than the proposed treatment of similar Secured Obligations held by Lenders hereunder requiring any consent that are not Affiliates of less than all affected Lenders)the Borrowers.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the execution and delivery of this Agreement, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth expressly provided in this Agreement or any other Loan Document (with respect to such Loan Document), neither none of this Agreement nor Agreement, any other Loan Document nor or any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdingsthe Borrowers, the Borrowers Administrative Agent and the Required Lenders and, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that (i) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by the Borrowers and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment and (ii) no such agreement shall (iA) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default, Event of Default or mandatory prepayment shall not constitute an increase of any Commitment of any LenderCommitment), (iiB) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest thereon (other than as a result of any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.13(c) or premium thereonin the applicability of post-default interest, it being understood that a waiver of a Default shall not constitute a reduction of interest for this purpose), or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iiiC) postpone the scheduled maturity date of any Loan, or the date of any scheduled payment of the principal amount of any Term Loan under Section 2.10, or L/C the required date of reimbursement of any LC Disbursement, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby, (ivD) except as otherwise set forth in this Agreement, change Section 2.17(b2.18(b), 2.18(c) or (c), Section 9.08(a) 7.02 or the CAM Exchange Article IX in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly and adversely affected thereby, (vE) change any of the provisions of Section 5.02 of the U.S. Collateral Agreement without the consent of each Lender directly and adversely affected thereby in its capacity as a Lender, or (F) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, as the case may be); provided that, with the consent of the Required Lenders, the provisions of this Section and the definition of the term “Required Lenders” may be amended to include references to any new class of loans created under this Agreement (or to lenders extending such loans) on substantially the same basis as the corresponding references relating to the Existing Classes of Loans or Lenders, (viG) release Guarantees constituting all or substantially all the value of the Guarantees under the Collateral Agreement, or limit the liability of Loan Parties in respect of Guarantees constituting such value, in each case without the written consent of each Lender (except as expressly provided in Section 9.14 or the applicable Security Document), (H) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all value of the Collateral from the Lien Liens of the Collateral Security Documents, without the written consent of each Lender (except as expressly provided in Section 9.14 or the applicable Security Document (viii) contractually subordinate the payment of the Obligations to including any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case release by the Administrative Agent in accordance connection with any sale or other disposition of the terms hereofCollateral upon the exercise of remedies under the Security Documents), will it being understood that an amendment or other modification of the type of obligations secured by the Security Documents shall not be deemed to require be a Supermajority Lender consentrelease of the Collateral from the Liens of the Security Documents), and (I) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of Collateral or payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders representing a Majority in Interest of each affected Class; provided, further, that (1) no such agreement shall amend, modify modify, extend or otherwise affect the rights or duties obligations of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be and (2) any amendment, waiver or other modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Lenders of a particular Class (but not the Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Borrowers and the requisite number or percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of (x) any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (A), (B), (C) or (D) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly and adversely affected by such amendment, waiver or other modification or (y) in the case of any vote requiring the approval of all Lenders or each affected Lender, any Lender that receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and upon the effectiveness of such amendment, waiver or other modification. Notwithstanding anything to the contrary herein, (i) the consent of the Lenders or the Required Lenders, as the case may be, shall not be required (A) to make any changes necessary to be made to this Agreement in connection with any borrowing of Incremental Term Loans to effect the provisions of Section 2.21, (B) to provide for any Incremental Revolving Commitment Increase, (C) otherwise to effect the provisions of Section 2.21, 2.22 or 2.23 in accordance with the terms thereof, (D) to agree to any time period set forth in Schedule 5.13 to be delivered on the Initial Funding Date, (E) to negotiate any Security Document with a Borrower or any other Loan Party or (F) for the Administrative Agent to negotiate, execute and deliver on behalf of the Secured Parties any Junior Lien Intercreditor Agreement, or any amendment thereto, in connection with any Permitted Junior Lien Secured Indebtedness, and (ii) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any Secured Party or any other Person, amendamend this Agreement, modify or supplement this the Collateral Agreement and any other Loan Security Document to cure add provisions with respect to “parallel debt” and other non-U.S. guarantee and collateral matters, including any ambiguityauthorizations, typographical collateral trust arrangements or technical errorother granting of powers by the Lenders and the other Secured Parties in favor of the Administrative Agent, defect in each case if such amendment is necessary or inconsistencydesirable to create or perfect, or preserve the validity, legality, enforceability and perfection of, the Guarantees and Liens contemplated to be created pursuant to this Agreement.
(c) The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, waivers or other modifications on behalf of such Lender. Any amendment, waiver or other modification effected in accordance with this Section 9.02 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.
(d) Notwithstanding anything to the contrary hereincontained in this Section 9.02, no Defaulting Lender shall have the Borrowers and the Administrative Agent may, without the input or consent of the Lenders, (i) effect amendments, supplements or waivers to any right to approve of the Security Documents, Guarantees, Junior Lien Intercreditor Agreements, intercreditor agreements or disapprove related documents executed by any Loan Party in connection with this Agreement if such amendment, supplement or waiver is delivered in order (in each case, as determined by the Administrative Agent in its sole discretion) (x) to comply with local law or consent hereunder which does not require advice of local counsel or (y) to cause such Security Documents, Guarantees, intercreditor agreements or related documents to be consistent with this Agreement and the consent other Loan Documents and (ii) effect changes to this Agreement or any other Loan Document that are necessary and appropriate to provide for, or make changes to, the Auction Procedures. To the extent notice has been provided to the Administrative Agent pursuant to this Agreement with respect to the inclusion of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender Previously Absent Financial Maintenance Covenant, this Agreement shall be excluded for a vote automatically and without further action on the part of any Person hereunder and notwithstanding anything to the contrary in this Section 9.02 deemed modified to include such Previously Absent Financial Maintenance Covenant on the date of the Lenders hereunder requiring any consent incurrence of less than all affected Lenders)the applicable Indebtedness to the extent required by the terms of this Agreement.
Appears in 2 contracts
Samples: Incremental Facility Agreement (Ingevity Corp), Credit Agreement (Ingevity Corp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.029.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in None of this Agreement or Agreement, any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor or any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdingsthe Borrower or the applicable Guarantor, the Borrowers as applicable, and the Required Lenders Lenders, or by Holdingsthe Borrower or the applicable Guarantor, the Borrowers as applicable, and the Administrative Agent with the consent of the Required Lenders (except that the Administrative Agent and the Borrower or the applicable Guarantor, as applicable, may enter into any amendment of any Loan Document in order to correct any obvious error or any immaterial technical error or omission therein without the consent of the Required Lenders); provided, however, that no such agreement shall amendment, waiver or consent shall:
(i) extend or increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, ,
(ii) reduce the principal amount of any Loan or L/C LC Disbursement of any Lender or reduce the rate of interest or premium thereon, or reduce any fees payable to any Lender hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, such Lender,
(iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C DisbursementLC Disbursement of any Lender, or any interest thereon, or any fees payable to any Lender hereunder, or reduce the amount of, waive or excuse any such paymentpayment to any Lender, or postpone the scheduled date of expiration of any Lender’s Commitment, without the written consent of each Lender directly affected therebysuch Lender; provided, however, that notwithstanding clause (ii) or (iii) of this Section 9.2(b), only the consent of the Required Lenders shall be necessary to waive any obligation of the Borrower to pay interest at the default rate set forth in Section 2.12(c),
(iv) change Section 2.17(b) or (c), Section 9.08(a2.17(c) or any other Section hereof providing for the CAM Exchange ratable treatment of the Lenders, in each case in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly and adversely affected therebythereby (it being understood that an amendment shall not be deemed to change such provisions in such manner to the extent it effects a new Commitment of any Lender(s) or an increase in the Commitment of any Lender(s) or in the aggregate amount of the Commitments of any class, including for the purpose of effecting a Commitment Increase or Incremental Term Loans in the manner contemplated by Section 2.19 or Section 2.20 and the extension of the Maturity Date as contemplated by Section 2.21,
(v) release all or substantially all of the Guaranties without the written consent of each Lender, except as expressly provided in each Guaranty and except to the extent the release of any Guarantor is permitted pursuant to Article VIII or Section 9.17 (in which case such release is automatic),
(vi) change any of the provisions of this Section 9.02, 9.2 or the percentage referred to in the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentshereunder, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishmentthat, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, solely with the consent of the other but without parties described by Section 2.20 to be parties to an Incremental Term Loan Amendment, Lenders of Incremental Term Loans and (B) solely with the consent of the parties described by Section 2.21 to be parties to an amendment described in Section 2.21(f), Lenders agreeing to a Maturity Date Extension Request, in each case may be included in the determination of Required Lenders on substantially the same basis as the Lenders of Commitments, Revolving Loans and Incremental Term Loans at such time), or
(vii) waive any condition set forth in Section 4.1 (other Personthan as it relates to the payment of fees and expenses of counsel), amendor, modify or supplement this Agreement and in the case of any other Loan Document to cure any ambiguityLoans made on the Restatement Effective Date, typographical or technical errorSection 4.2, defect or inconsistencywithout the written consent of each Lender. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).:
Appears in 2 contracts
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company therefrom Issuer herefrom shall in any event be effective unless the same shall be permitted by paragraph (bSection 6.02(b) of this Section 9.02and the S&P Rating Condition is satisfied with respect thereto, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit an Advance shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Servicer, the Trustee, the Class A-2 Agent, any Lender Holder or any Issuing Bank other Noteholder may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Servicer on behalf of the Issuer and the Required Lenders or by Holdings, the Borrowers and the Administrative Class A-2 Agent with the consent of Holders representing a majority of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth Class A-2 Commitments except as otherwise expressly provided in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby6.02(c); provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative AgentTrustee or of the Servicer, any Issuing Bank as applicable, hereunder or the Swingline Lender hereunder in respect hereof without the prior written consent of the Administrative Agent, Trustee or of the relevant Issuing Bank or the Swingline LenderServicer, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document applicable. Prior to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove entering into any amendment, waiver or consent hereunder modification to this Agreement, the Rating Agency Condition shall be satisfied with respect thereto. Subject to the foregoing, the Servicer on behalf of the Issuer shall give written notice to each Rating Agency and the Trustee of any waiver, amendment or modification of any provision of this Agreement.
(c) No waiver, amendment or modification of the Indenture or any other agreement referred to herein or therein to which does not require the Issuer is a party (other than this Agreement) shall affect any of the rights or obligations under this Agreement of the parties hereto unless such waiver, amendment or modification is effected in accordance with the applicable provisions of this Agreement and the Indenture; provided that no such waiver, amendment or modification shall increase the Maximum Class A-2 Commitment, or extend the term of any of the Class A-2 Commitments, or extend the time or waive any requirement for the reduction or termination of any of the Class A-2 Commitments, without the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring Holders.
(d) A failure or delay in exercising any consent right, power or privilege in respect of less than all affected Lenders)this Agreement shall not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege shall not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
Appears in 2 contracts
Samples: Class a 2 Note Purchase Agreement (NewStar Financial, Inc.), Purchase Agreement (NewStar Financial, Inc.)
Waivers; Amendments. (a) No waiver of any Default or Event of Default shall be a waiver of any other Default or Event of Default. No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No course of dealing between either of the Borrowers or any other Loan Party and any Lender, the Issuing Bank or the Administrative Agent shall operate as a waiver of any right of any Lender, the Issuing Bank or the Administrative Agent. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings either of the Borrowers or the Company any other Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Person shall entitle any Person to any or notice or demand in similar or other circumstances. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in Neither this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers or the affected Loan Party and the Required Lenders Lenders, or by Holdings, the Borrowers or the affected Loan Party and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall shall, without the written consent of each Lender adversely affected thereby, (i) increase the any Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C any reimbursement obligation with respect to an LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees fee payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the any principal amount of any Loan or L/C any reimbursement obligation with respect to an LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, ; (iv) release any Material Domestic Subsidiary from its Guaranty Agreement or Lufkin from the Lufkin Guaranty or either of the Borrowers or any Material Domestic Subsidiary from its Security Document (except for Material Domestic Subsidiaries that cease to be Material Domestic Subsidiaries and Material Domestic Subsidiaries that are sold in transactions otherwise permitted hereunder, for which a release shall be provided by the Administrative Agent in accordance with Section 9.18) or limit its liability in respect of such Guaranty Agreement or Security Document, or waive the requirement that any Material Domestic Subsidiary execute and deliver a Guaranty Agreement or that either of the Borrowers or any Material Domestic Subsidiary execute and deliver a Security Document, or waive the obligation to provide, or release, any Cash Collateral provided pursuant to Section 2.05(k) or Section 7.02, without the consent of each Lender; (v) release any Collateral (except in accordance with Section 9.18) or waive the requirement that any Person required by this Agreement to execute and deliver a Security Document do so, without the consent of each Lender; (vi) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange 2.20 in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, Lender; or (vvii) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such changeamendment, waiver, discharge waiver or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any the Issuing Bank or the Swingline Lender hereunder without the prior written consent of under this Agreement or any other Loan Document, unless in writing and signed by the Administrative Agent, the relevant Issuing Bank Bank, or the Swingline LenderLender respectively, as in addition to the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document Lenders required above to cure any ambiguity, typographical or technical error, defect or inconsistencytake such action. Notwithstanding anything to the contrary herein, no this Section 9.02, in respect of Defaulting Lender shall have any right to approve or disapprove any amendmentLender, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)subject to Section 2.22.
Appears in 2 contracts
Samples: Credit Agreement (Lufkin Industries Inc), Credit Agreement (Lufkin Industries Inc)
Waivers; Amendments. (a) No failure or on the part of the Security Agent to exercise, and no delay by the Administrative Agentin exercising, any Issuing Bank right, power or any Lender in exercising any right or power remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right right, power or power, or any abandonment or discontinuance of steps to enforce such a right or power, remedy by the Security Agent preclude any other or further exercise thereof or the exercise of any other right right, power or powerremedy. The rights and All remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or other remedies that they would otherwise haveprovided by law. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company FCX therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had No notice or knowledge of such Default at the timedemand on FCX in any case shall entitle FCX to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers FCX and the Required Lenders Security Agent acting on instructions from the Majority Banks; provided that (i) any amendment or waiver of this Section 13(b) or any amendment or waiver that changes or could have the effect of changing the amount of any payment required to be made by HoldingsFCX under Section 2, 3 or 4 hereof, or the Borrowers timing of any such payment, or the conditions under which FCX shall be required to purchase the Pledged PTII Shares or the Pledged Borrower Shares or to purchase and assume the Administrative Agent with interests, rights and obligations of the Secured Parties under the Loan Documents, or this Section 13, shall require the consent of the Required Lenderseach Bank; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent amendments to and waivers of the Required Lenders shall be necessary to amend Section 2.12(ccovenants (including the definitions used in such covenants) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone or incorporated by reference in Section 8 or 9 may be effected by the scheduled date of payment Security Agent acting on instructions from Banks representing more than 51% of the principal amount of the Advances outstanding under the Loan Agreement or, if no Advances are outstanding, more than 51% of the aggregate Commitments of the Banks; and (iii) any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce release of the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) Pledged PTII Shares or the CAM Exchange Pledged Borrower Shares pursuant to and in a manner that would alter compliance with Sections 2.04 and 7.01 of the pro rata sharing of payments required thereby Loan Agreement, and any amendment or change the order of application specified in Section 2.22(d) of modification to this Agreement or Section 6.5 required to give effect thereto, shall not require any instructions from the Banks, but shall be effected by the Security Agent at the request of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent Borrower in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties Section 11.02 of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)Agreement.
Appears in 2 contracts
Samples: Put and Guaranty Agreement (Freeport McMoran Copper & Gold Inc), Put and Guaranty Agreement (Freeport McMoran Copper & Gold Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the execution and delivery of this Agreement, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth expressly provided in this Agreement or any other Loan Document (with respect to such Loan Document), neither none of this Agreement nor Agreement, any other Loan Document nor or any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdingsthe Borrower, the Borrowers Administrative Agent and the Required Lenders and, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that (i) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment and (ii) no such agreement shall (iA) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default, Event of Default or mandatory prepayment shall not constitute an increase of any Commitment of any LenderCommitment), (iiB) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest thereon (other than as a result of any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.13(c) or premium thereonin the applicability of post-default interest, it being understood that a waiver of a Default shall not constitute a reduction of interest for this purpose)), or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iiiC) postpone the scheduled maturity date of any Loan, or the date of any scheduled payment of the principal amount of any Term Loan under Section 2.10, or L/C the required date of reimbursement of any LC Disbursement, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby, (ivD) except as otherwise set forth in this Agreement, change Section 2.17(b2.18(b) or (c), Section 9.08(a2.18(c) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly and adversely affected thereby, (vE) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, as the case may be); provided that, with the consent of the Required Lenders, the provisions of this Section and the definition of the term “Required Lenders” may be amended to include references to any new class of loans created under this Agreement (or to lenders extending such loans) on substantially the same basis as the corresponding references relating to the existing Classes of Loans or Lenders, (viF) release Guarantees constituting all or substantially all the value of the Guarantees under the Collateral Agreement, or limit the liability of Loan Parties in respect of Guarantees constituting such value, in each case without the written consent of each Lender (except as expressly provided in Section 9.14 or the applicable Security Document), (G) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien Liens of the Collateral Security Documents, without the written consent of each Lender (except as expressly provided in Section 9.14 or the applicable Security Document (viii) contractually subordinate the payment of the Obligations to including any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case release by the Administrative Agent in accordance connection with any sale or other disposition of the terms hereofCollateral upon the exercise of remedies under the Security Documents), will it being understood that an amendment or other modification of the type of obligations secured by the Security Documents shall not be deemed to require be a Supermajority Lender consentrelease of the Collateral from the Liens of the Security Documents), and (H) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of Collateral or payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders representing a Majority in Interest of each affected Class; provided, further, provided further that (1) no such agreement shall amend, modify modify, extend or otherwise affect the rights or duties obligations of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be and (2) any amendment, waiver or other modification of this Agreement that by its terms affects the Administrative Agent and the Borrowers may, with the consent rights or duties under this Agreement of the other Lenders of a particular Class (but without not the consent Lenders of any other PersonClass), amendmay be effected by an agreement or agreements in writing entered into by the Borrower and the requisite number or percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, modify no consent with respect to any amendment, waiver or supplement other modification of this Agreement and or any other Loan Document shall be required of (x) any Defaulting Lender, except with respect to cure any ambiguityamendment, typographical waiver or technical errorother modification referred to in clause (A), defect (B), (C) or inconsistency(D) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly and adversely affected by such amendment, waiver or other modification or (y) in the case of any vote requiring the approval of all Lenders or each affected Lender, any Lender that receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and upon the effectiveness of such amendment, waiver or other modification. Notwithstanding anything to the contrary herein, no Defaulting Lender (i) the consent of the Lenders or the Required Lenders, as the case may be, shall not be required (A) for the Administrative Agent to negotiate, execute and deliver on behalf of the Secured Parties the Pari Passu Intercreditor Agreement or the Junior Lien Intercreditor Agreement, or any amendment thereto, in connection with any Permitted Secured Indebtedness incurred in accordance with Section 6.01, (B) to make any changes necessary to be made to this Agreement in connection with any borrowing of Incremental Term Loans to effect the provisions of Section 2.21, (C) to provide for any Incremental Revolving Commitment Increase, (D) otherwise to effect the provisions of Section 2.21 or 2.22 in accordance with the terms thereof, (E) to agree to any time period set forth in Schedule 5.13 to be delivered on the Closing Date or (F) to negotiate any Foreign Pledge Agreement, any Foreign Security Agreement or any other Security Agreement with the Borrower or any other Loan Party and (ii) the Administrative Agent and the Borrower may, without the consent of any Secured Party or any other Person, amend this Agreement, the Collateral Agreement and any other Security Document to add provisions with respect to “parallel debt” and other non-U.S. guarantee and collateral matters, including any authorizations, collateral trust arrangements or other granting of powers by the Lenders and the other Secured Parties in favor of the Administrative Agent, in each case if such amendment is necessary or desirable to create or perfect, or preserve the validity, legality, enforceability and perfection of, the Guarantees and Liens contemplated to be created pursuant to this Agreement.
(c) The Administrative Agent may, but shall have no obligation to, with the concurrence of any right to approve Lender, execute amendments, waivers or disapprove any other modifications on behalf of such Lender. Any amendment, waiver or consent hereunder which does not require other modification effected in accordance with this Section 9.02 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.
(d) Notwithstanding anything to the contrary contained in this Section 9.02, the Borrower and the Administrative Agent may, without the input or consent of each affected Lender the Lenders, (it being understood that i) effect amendments, supplements or waivers to any Commitments of the Security Documents, guarantees, intercreditor agreements or Loans held or deemed held related documents executed by any Defaulting Lender shall Loan Party in connection with this Agreement if such amendment, supplement or waiver is delivered in order (in each case, as determined by the Administrative Agent in its sole discretion) (x) to comply with local law or advice of local counsel or (y) to cause such Security Documents, guarantees, intercreditor agreements or related documents to be excluded for a vote of consistent with this Agreement and the Lenders hereunder requiring other Loan Documents and (ii) effect changes to this Agreement or any consent of less than all affected Lenders)other Loan Document that are necessary and appropriate to provide for, or make changes to, the Auction Procedures.
Appears in 2 contracts
Samples: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, Lender or (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Borrower may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans (as determined by the Borrower in good faith), except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
Appears in 2 contracts
Samples: Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings the Parent Guarantor or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Documentan Incremental Amendment or as provided in Section 2.14(b), Section 2.14(c) and Section 9.02(d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdingsby, in the case of this Agreement, the Borrowers Parent Guarantor, the Borrower and the Required Lenders (or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders) and, in the case of any other Loan Document, the applicable Loan Parties party to such Loan Document and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders); providedprovided that, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (but not the consent of the Required Lenders) (it being understood that a no amendment, modification, termination, waiver of or consent with respect to any condition precedent set forth in Section 4.02 precedent, covenant or the waiver of any Default or mandatory prepayment shall not constitute an increase of any in the Commitment of any Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest, fees or other amounts payable hereunder, without the written consent of each Lender directly and adversely affected thereby; provided that only thereby (but not the consent of the Required Lenders shall be necessary to amend Section 2.12(cLenders) (except that (A) any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) or to waive any obligation (B) the waiver or reduction of the Borrowers Borrower to pay interest or fees at the rate applicable Default Rate set forth thereinin Section 2.13(f) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected therebythereby (but not the consent of the Required Lenders) (other than any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.11 or the waiver or reduction of the Borrower to pay interest or fees at the applicable Default Rate set forth in Section 2.13(f), in each case which shall only require the approval of the Required Lenders), (iv) change Section 2.17(b2.09(c) or 2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the ratable reduction of Commitments or the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change the payment waterfall provisions of Section 2.21(b) or 7.03 without the written consent of each Lender, (vi) waive any condition set forth in Section 4.03 in respect of the making of a Revolving Loan without the written consent of the Required Revolving Lenders (provided further that, notwithstanding anything to the contrary herein, any waiver of the conditions set forth in Section 4.03 in respect of the making of Revolving Loans shall only require the consent of the Required Revolving Lenders), (vii) waive any condition set forth in Section 4.02 without the written consent of each Lender, (viii) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of ”, “Alternative CurrenciesRequired Revolving Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Loans are included on the Effective Date), (viix) (1) release the Borrower from its obligations under Article X or under the Collateral Documents or (2) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement Collateral Documents and the Foreign Guarantee and Security Agreement Agreement, in each case, without the written consent of each Lender, (viix) except as provided in clause (d) of this Section or in any Collateral Document, release all or substantially all of the Collateral from the Lien of the Collateral DocumentsCollateral, without the written consent of each Lender Lender, or (viiixi) contractually except as provided in clause (d) of this Section or in any Collateral Document, subordinate the payment of (x) Lien securing the Obligations under the Loan Documents or (y) the Obligations under the Loan Documents in right of payment, in each case, to the obligations under any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt Indebtedness, without the written consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lendersprovided further that, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline LenderBank, as the case may be and (2) it being understood that any change to Section 2.21 shall require the consent of the Administrative Agent and the Borrowers mayIssuing Banks); and provided further that, no such agreement shall amend or modify the provisions of Section 2.06 without the prior written consent of the Administrative Agent and the Issuing Banks and (B) any amendment or waiver that by its terms affects the rights or duties of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) will require only the requisite percentage in interest of the affected Class or Lenders that would be required to consent thereto if such Class of Lenders were the only Class of Lenders. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly and adversely affected by such amendment, waiver or other modification.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Amendment) to this Agreement and to permit 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 Revolving Loans, the initial Term Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(1) The Liens granted to the Administrative Agent by the Loan Parties on any Collateral shall automatically terminate and be released and the Administrative Agent is hereby authorize to release such Liens (i) upon the Termination Date, (ii) on Collateral constituting property being sold or disposed of to any Person (other than to a Loan Party) in compliance with the terms of this Agreement, (iii) on Collateral constituting property leased to the Parent Guarantor, the Borrower or any Restricted Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII or (v) on assets that constitute Excluded Assets. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(2) Each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Administrative Agent (i) to subordinate any Lien on any assets granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.01(i)(i) or 6.01(i)(ii). In each case as specified in this Section 9.02(d), the Administrative Agent will (and each Lender irrevocably authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to evidence the release of such Guarantor from its obligations under the Guarantee Agreement, in each case in accordance with the terms of the Loan Documents and this Section 9.02; provided that, if requested by the Administrative Agent, the Borrower has delivered a certificate, executed by a Responsible Officer of the Borrower on or prior to the date any such action is requested to be taken by the Administrative Agent, certifying that the applicable transaction is permitted under the Loan Documents and such release or subordination is permitted pursuant to this Section 9.02(d) (and the Lenders hereby authorize the Administrative Agent to rely upon such certificate in performing its obligations under this Section 9.02(d)).
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent (and, in the case of any Revolving Lender, the Issuing Banks) shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender and (iii) such Non-Consenting Lender shall have received the outstanding principal amount of its Loans and participations in LC Disbursements. Each party hereto agrees that (i) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (ii) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that, any such documents shall be without recourse to or warranty by the parties thereto.
(f) Notwithstanding anything herein to the contrary, if the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other Personparty to this Agreement.
(g) Notwithstanding anything to the contrary, the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement this Agreement and to give effect to a change in the Parent Guarantor’s fiscal year pursuant to Section 6.13 without any further action or consent of any other Loan Document party to cure any ambiguity, typographical or technical error, defect or inconsistency. this Agreement.
(h) Notwithstanding anything herein to the contrary hereincontrary, no Defaulting Lender shall have any right to approve or disapprove any amendmentguarantees, waiver or consent hereunder which does not require collateral security documents and related documents entered into in connection with this Agreement and the other Loan Documents may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended, supplemented and waived with the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote the Administrative Agent at the request of the Lenders hereunder requiring any Borrower without the need to obtain the consent of less than all affected Lenders)any other Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice of local counsel, (ii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents, or (iii) to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties.
Appears in 2 contracts
Samples: Credit Agreement (Waldencast PLC), Credit Agreement (Waldencast Acquisition Corp.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company either Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth necessary in this Agreement or any other Loan Document (order to effect an increase in the Revolving Commitments in accordance with respect to such Loan Document)Section 2.19, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Revolving Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender, or (vi) release all or substantially all of the Guarantors Holdings from their obligations its Guarantee under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, or limit its liability in respect of such Guarantee, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Holdings, the Borrower, the Required Lenders and (2) the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Banks and the Borrowers maySwingline Lender) if (i) by the terms of such agreement the Revolving Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, with the consent each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other but without the consent of any other Person, amend, modify amounts owing to it or supplement accrued for its account under this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Advance Auto Parts Inc), Credit Agreement (Advance Auto Parts Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company a Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers a Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, Lender or (vii) except as contemplated by this Agreement, release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Company may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistencyinconsistency and such amendment shall become effective without any further action or the consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans (as determined by the applicable Borrower in good faith), except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
Appears in 2 contracts
Samples: Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Waivers; Amendments. (a) (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on the Parent, Holdco or the Borrower in any case shall entitle the Parent, Holdco or the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such any Incremental Facility Amendment, in Section 2.21, with respect to any Refinancing Amendment, in Section 2.24 with respect to an Extension Offer, with respect to the Term Loan Exchange Notes in Section 2.25, in Section 9.02(d) with respect to any amendment in respect of Replacement Term Loans and in Section 9.02(h), in Section 9.16 or as otherwise specifically provided below or otherwise provided herein or in a Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto (except as otherwise expressly provided therein), in each case with the consent of the Required Lenders (other than with respect to any amendment, modification or waiver contemplated in clauses (i) through (x) in the following proviso, which shall only require the consent of the Lenders expressly set forth therein and not the Required Lenders; provided), provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 9 of Amendment No. 3 or Section 4.02. of this Agreement or the waiver of any covenant, Default, Event of Default or mandatory prepayment or mandatory reductions of the Commitments shall not constitute an increase of any Commitment of any a Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement owed to a Lender or reduce the rate of interest or premium thereonthereon owed to such Lender, or reduce any fees payable hereunderhereunder owed to such Lender, without the written consent of each such Lender directly and adversely affected thereby; , provided that only any waiver of Default or Event of Default or default interest, waiver of a mandatory prepayment or any modification, waiver or amendment to the consent financial covenant definitions or financial ratios or any component thereof in this Agreement shall not constitute a reduction or forgiveness in the interest rates or the fees for purposes of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth thereinthis clause (ii), (iii) except as otherwise provided hereunder, including without limitation pursuant to Refinancing Amendments pursuant to Section 2.21 or Extensions pursuant to Section 2.24, postpone the scheduled date of payment of the principal amount final maturity of any Loan or L/C DisbursementLoan, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce or forgive the amount of, waive or excuse any such paymentrepayment (but not prepayment), or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected therebythereby (it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, covenant, Default, Event of Default, waiver of default interest, mandatory prepayment or mandatory reduction of the Commitments shall constitute a postponement of any date scheduled for the payment of principal or interest or an extension of the final maturity of any Loan or the scheduled termination date of any Commitment), (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change modify the order of application specified payments set forth in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, 7.04 without the written consent of each Lender directly and adversely affected thereby, (v) change any of the provisions of this Section 9.02, 9.02(b) or reduce the percentage set forth in the definition of the term “Required Lenders”, “Required Revolving Lenders” or reduce the definition of “Alternative Currencies” or percentage in any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender or each Revolving Lender, as the case may be (or each Lender of such Class, as the case may be) (it being understood that, other than as specifically provided in this Agreement, including pursuant to (v) the Term Loan Exchange Notes in Section 2.25, (w) Section 9.02(d) with respect to Replacement Term Loans, (x) any Incremental Facility Amendment (the consent requirements for which are set forth in Section 2.20), (y) a Refinancing Amendment (the consent requirements for which are set forth in Section 2.21) and (z) an Extension Offer pursuant to Section 2.24, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders or a particular Class of Lenders on substantially the same basis as the Term Loans and Revolving Commitments on the Effective Date), (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and Guaranties (except as provided herein or in the Foreign Guarantee and Security Agreement applicable Loan Document), without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien Liens of the Collateral DocumentsSecurity Documents (except as provided herein or in the applicable Loan Document), without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that any subordination of a Lien permitted hereunder shall not constitute a release of a Lien under this section and the establishmentgranting of any pari passu Liens in connection with the incurrence of Indebtedness or the granting of Liens otherwise permitted hereunder from time to time (including pursuant to amendments) shall not constitute a release of Liens), (viii) modify the provisions of Section 9.04(e) in a manner that directly and adversely affects the protections afforded to an SPV pursuant to the provisions of Section 9.04(e), without the written consent of each Granting Lender all or any part of whose Loans are being funded by an SPV at the time of such amendment, modification or elimination waiver, (ix) amend, waive or otherwise modify any term or provision of ReservesSection 6.12, Section 7.01 (solely as it relates to Section 6.12), Section 7.03 or the definition of “First Lien Leverage Ratio” (or any of its component definitions (as used in each case by such Section but not as used in other Sections of this Agreement)) without the Administrative Agent written consent of the Required Revolving Lenders and (x) in accordance connection with an amendment that addresses solely a re-pricing transaction in which any Class of Term Loans or Revolving Commitments (and the terms Revolving Loans in respect hereof) is refinanced with a replacement Class of term loans or revolving commitments (and the revolving loans in respect hereof) bearing (or is modified in such a manner such that the resulting term loans or revolving commitments (and the revolving loans in respect hereof bear) a lower Yield, only the consent of the Lenders holding Term Loans or Revolving Commitments (and the Revolving Loans in respect hereof) subject to such permitted repricing transaction that will not be deemed to require continue as a Supermajority Lender consentin respect of the repriced tranche of Term Loans or Revolving Commitments (and the Revolving Loans in respect hereof) or modified Term Loans or Revolving Commitments (and the Revolving Loans in respect hereof); provided, further, that (1) no such agreement shall amend, directly and adversely amend or modify or otherwise affect the rights or duties of the Administrative Agent, any the Collateral Agent or the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Collateral Agent or the Swingline LenderIssuing Bank, as the case may be and (2) be. In the Administrative Agent and the Borrowers may, with event an amendment to this Agreement or any other Loan Document is effected without the consent of the other but without Administrative Agent or Collateral Agent (to the consent extent permitted hereunder) and to which the Administrative Agent or Collateral Agent is not a party, the Borrower shall furnish a copy of any other Person, amend, modify or supplement this Agreement and any other Loan Document such amendment to cure any ambiguity, typographical or technical error, defect or inconsistencythe Administrative Agent. Notwithstanding anything to the contrary hereinforegoing, no Defaulting Lender shall have any right or Issuing Bank consent is required to approve or disapprove effect any amendment, waiver modification or consent hereunder which does not require supplement to any intercreditor agreement or arrangement permitted under this Agreement or in any document pertaining to any Indebtedness permitted hereby that is permitted to be secured by the consent Collateral, including any Seattle Term Loan, Incremental Term Loan or Incremental Revolving Loan, any Other Term Loan, Other Revolving Loan or Other Revolving Commitments, Extended Term Loans, Extended Revolving Loans, any Refinancing Notes, or any Additional Term Notes, Unrestricted Additional Term Notes, Refinancing Notes, Term Loan Exchange Notes and Permitted First Priority Replacement Debt or Permitted Second Priority Replacement Debt or Additional Debt, for the purpose of adding the holders of such Indebtedness (or their senior representative) as a party thereto and otherwise causing such Indebtedness to be subject thereto, to give effect hereto or otherwise carry out the purposes thereof, in each affected Lender case as contemplated by the terms of such intercreditor agreement or arrangement permitted under this Agreement, as applicable, together with (A) any immaterial changes and (B) changes implementing additional extensions of credit permitted under this Agreement, in each case in form and substance reasonably satisfactory to the Administrative Agent and/or Collateral Agent (it being understood that any Commitments junior Liens are not required to be pari passu with other junior Liens, and that Indebtedness secured by junior Liens may be secured by Liens that are pari passu with, or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of junior in priority to, other Liens that are junior to the Lenders hereunder requiring any consent of less than all affected LendersLiens securing the Obligations).
Appears in 2 contracts
Samples: Credit Agreement (Micro Focus International PLC), Credit Agreement (Micro Focus International PLC)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 Article IV or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement Advance or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c2.12(f) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C DisbursementAdvance, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of (A) the Guarantors from their obligations under any Guarantee Agreement (other than pursuant to the U.S. Guarantee and Security Agreement and proviso set forth in Section 5.09) or (B) the Foreign Guarantee and Security Agreement value of the Guarantees of the Obligations, without the consent of each Lender or (vii) subordinate the Obligations hereunder to any other Indebtedness or other obligation, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Borrower may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) 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 Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Viatris Inc), Revolving Credit Agreement (Viatris Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document) or the Fee Letter (with respect to any Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly and adversely affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, but that any waiver of any condition set forth in Section 4.02 following the Effective Date shall require the consent of the Required Revolving Lenders, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly adversely affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. applicable Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreements, without the written consent of each Lender, Lender or (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be. Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and (2restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers mayBorrower (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing. Notwithstanding anything in this Section 9.02 to the contrary, (a) technical and conforming modifications to the Loan Documents may be made with the consent of the other but Borrower and the Administrative Agent to the extent necessary (i) to integrate any Incremental Term Loans, any Incremental Revolving Loans, any Extended Term Loans or any Extended Revolving Commitments or (ii) to cure any ambiguity, omission, defect or inconsistency and (b) without the consent of any other PersonLender or L/C Issuer, amendthe Loan Parties and the Administrative Agent or any collateral agent may (in their respective sole discretion, modify or supplement this Agreement and any other Loan Document to cure any ambiguityshall, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have extent required by any right to approve or disapprove Loan Document) enter into (x) any amendment, modification or waiver of any Loan Document, or consent hereunder which does not require enter into any new agreement or instrument, to effect the consent granting, perfection, protection, expansion or enhancement of each affected Lender (it being understood that any Commitments security interest in any Collateral or Loans held or deemed held by any Defaulting Lender shall be excluded additional property to become Collateral for a vote the benefit of the Lenders hereunder requiring Secured Parties or as required by local law to give effect to, or protect any consent security interest for benefit of less than all affected Lendersthe Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document or (y) any First Lien Intercreditor Agreement and/or Second Lien Intercreditor Agreement with the holders of Permitted Debt Securities (or any amendment or supplement thereto with respect to additional Permitted Debt Securities).
Appears in 2 contracts
Samples: Restatement Agreement (Delphi Automotive PLC), Credit Agreement (Delphi Automotive PLC)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.25 with respect to such the extension of the Maturity Date, or as provided in Section 2.20 with respect to an Incremental Term Loan DocumentAmendment or as provided in Section 2.14(c), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby(provided that an amendment, it being understood that a modification, waiver of or consent with respect to any condition precedent set forth in precedent, covenant, mandatory prepayment pursuant to Section 4.02 or the waiver 2.11.2, Event of any Default or mandatory prepayment Default shall not constitute an increase of any in the Commitment of any Lender), (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest thereon (other than waivers or premium thereonamendments with respect to the application of a default rate of interest pursuant to Section 2.13(b)), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided thereby (except that only no amendment entered into pursuant to the consent terms of the Required Lenders Section 2.14(c) shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at constitute a reduction in the rate set forth thereinof interest or fees for purposes of this clause (ii)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected therebythereby (other than any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.11.2, in each case which shall only require the approval of the Required Lenders), (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentshereunder, without the written consent of each Lender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Revolving Loans are included on the Effective Date) or (viiivi) contractually subordinate release the payment of the Obligations Company from its obligations under Article X (other than with respect to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral Borrower ceasing to be a Borrower in favor of the Administrative Agent to Liens securing other Funded Debt accordance with this Agreement) without the written consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the any Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the such Swingline Lender, as the case may be (it being understood that any change to Section 2.24 shall require the consent of the Administrative Agent, the Issuing Banks and the Swingline Lenders). Notwithstanding the foregoing, (A) no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly and adversely affected by such amendment, waiver or other modification, and (B) as to any amendment, amendment and restatement or other modification otherwise approved in accordance with this Section, it shall not be necessary to obtain the consent or approval of any Lender that, upon giving effect to such amendment, amendment and restatement or other modification, would have no Commitment or outstanding Loans, so long as such Lender receives payment in full of the principal of and interest on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, amendment and restatement or other modification becomes effective.
(c) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) each Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender. Each party hereto agrees that (1) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Company, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (2) the Administrative Agent Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the Borrowers mayterms thereof; provided that, with following the consent effectiveness of any such assignment, the other but parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the consent of any other Personparties thereto.
(d) Notwithstanding the foregoing, amend, modify or supplement this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (x) to cure add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit 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 Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(e) If the Administrative Agent and the Company acting together identify any ambiguity, omission, mistake, typographical error or technical errorother defect in any provision of this Agreement or any other Loan Document, defect then the Administrative Agent and the Company shall be permitted to amend, modify or inconsistency. Notwithstanding anything supplement such provision to the contrary hereincure such ambiguity, no Defaulting Lender omission, mistake, typographical error or other defect, and such amendment shall have become effective without any right to approve or disapprove any amendment, waiver further action or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)other party to this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Fiserv Inc), Credit Agreement (Fiserv Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Lender or any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Lenders and the Issuing Banks and the Lenders hereunder and under the any other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in Sections 2.14(b) and 2.22(c), none of this Agreement or Agreement, any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor or any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, (i) the Borrowers Company and the Required Lenders or by Holdings, the Borrowers Company and the Administrative Agent with the written consent of the Required LendersLenders and (ii) in the case of any other Loan Document, each applicable Borrower (or the Company on behalf of such Borrower) and each other party thereto; provided, provided that no such agreement shall (iA) increase the a Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (iiB) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable to any Lender hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iiiC) postpone the scheduled date of payment of the principal amount of any Loan or L/C any LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (ivD) waive or change Section 2.17(b2.18(b) or (c), Section 9.08(a2.18(c) or any other provision providing for the CAM Exchange pro rata sharing of payments among the Lenders in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (vE) waive or change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Tranche) required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (viF) release all waive or substantially all change any provision of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement last three paragraphs of Article VII without the written consent of each Lender, (viiG) waive or change any provision of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders under either Tranche differently from those of Lenders under the other Tranche without the written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of the adversely affected Tranche or (H) release all or substantially all of the Collateral Company from the Lien of the Collateral Documents, its obligations under Article IX without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline Lender, as the case may be and be, (2) any waiver, amendment or modification that by its terms is limited in effect to the rights or duties of Lenders under one of the Tranches may be effected by an agreement or agreements in writing entered into by the Company and the requisite percentage in interest of Lenders under the affected Tranche and (3) without consent of any Lender, the amount of LC Commitment of any Issuing Bank may be modified as contemplated by the definition of the term LC Commitment. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Company, the Required Lenders and the Administrative Agent (and, if its rights or obligations are affected thereby, each Issuing Bank or Swingline Lender) if (x) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (y) at the Borrowers maytime such amendment becomes effective, with the consent each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other but without the consent of any other Personamounts owing to it or accrued for its account under this Agreement, amend, modify or supplement this Agreement including reimbursement obligations with respect to LC Disbursements and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)interest thereon.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Kellogg Co), Credit Agreement (Kellogg Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender Issuing Bank or any Issuing Bank Lender may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in Section 2.08(e), Section 2.22(a) and Section 10.02(c), none of this Agreement or Agreement, any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor or any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Company and the Required Lenders or by Holdingsthe Company, Administrative Agent and the Borrowers and Issuing Banks with the consent of the Required Lenders (subject to clause (c) below) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; providedprovided that, that except as expressly contemplated by Section 2.08(e), no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood and agreed that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment Event of Default shall not constitute an increase of any in the Commitment of any such Lender), (ii) reduce the principal amount of any Loan Loan, any amount payable in respect of any B/A or L/C any LC Disbursement or reduce the rate of interest or premium thereonApplicable Rate, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth thereinowed such amount, (iii) postpone the scheduled date of any scheduled payment of the principal amount of any Loan Loan, any amount payable in respect of any B/A or L/C any LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such scheduled payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected therebyowed such amount or which holds such Commitment, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby thereby, or change amend the order pro rata treatment of application specified in Section 2.22(d) of this Agreement or Section 6.5 each reduction of the U.S. Guarantee and Security AgreementCommitments under Section 2.08, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or reduce the percentage set forth in the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, as the case may be), (vi) release the Company or all or substantially all of the Subsidiary Guarantors from its or their obligations under Article VIII or the U.S. Subsidiary Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, (vii) release all or substantially all change any provisions of the Collateral from the Lien of the Collateral Documents, Section 7.02 without the written consent of each Lender Lender, or (viii) contractually subordinate change any provisions of any Loan Document in a manner that by its terms adversely affects the payment rights in respect of payments due to Lenders holding Loans of any Class differently than those of Lenders holding Loans of any other Class without the written consent of Lenders holding a majority in interest of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent outstanding Loans and unused Commitments of each Lenderadversely affected Class; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank hereunder or the Swingline Lender hereunder under any other Loan Document without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline LenderBank, as the case may be be, and (2B) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Global Tranche Lenders (but not the US/UK Tranche Lenders) or the US/UK Tranche Lenders (but not the Global Tranche Lenders) may be effected by an agreement or agreements in writing entered into by the Company and requisite percentage in interest of the affected Class of Lenders.
(c) If the Administrative Agent and the Borrowers mayCompany acting together identify any ambiguity, with the consent omission, mistake, typographical error or other ministerial defect in any provision of the other but without the consent of this Agreement or any other PersonLoan Document, then the Administrative Agent and the Company shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement and any other Loan Document if the same is not objected to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything in writing by the Required Lenders to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent Administrative Agent within five (5) Business Days following receipt of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)notice thereof.
Appears in 2 contracts
Samples: Credit Agreement (Molson Coors Beverage Co), Credit Agreement (Molson Coors Beverage Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank Bank, any Arranger or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, any Xxxxxxx Xxxxx, the Issuing Banks Arrangers and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings the Borrower or the Company any Subsidiary therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Arranger, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified (except as expressly set forth herein or therein (including Section 2.14(c))) except pursuant to an agreement or agreements in writing entered into by Holdingsthe Borrower and any other affected Borrower Party, as applicable, on the Borrowers one hand, and the Required Lenders Lenders, on the other hand, or by Holdingsthe Borrower and any affected Borrower Party, as applicable, on the Borrowers one hand, and the Administrative Agent with the consent of the Required Lenders, on the other hand; provided, provided that no such agreement shall (i) increase the Commitment Committed Amount of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder (other than the definition of “Consolidated Leverage Ratio” and the other defined terms that are components thereof whether or not the effect of such waiver, amendment or modification could reasonably be expected to result in reducing the amount of interest or fees payable hereunder, ) without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any CommitmentCommitted Amount, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (vi) release the Borrower or all or substantially all of the Guarantors Restricted Subsidiaries from their Guarantee obligations under pursuant to the U.S. Guarantee and Security Agreement and Documents (except if such entity, other than the Foreign Guarantee and Security Agreement Borrower, is no longer a Restricted Subsidiary in compliance with this Agreement), without the written consent of each Lender, or (vii) release all or substantially all of the Collateral from the Lien of the Collateral DocumentsCollateral, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Arrangers or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Arrangers or such Issuing Bank or the Swingline LenderBank, as the case may be be, (B) any amendment, waiver, or modification which has an adverse effect on a Lender or Affiliate thereof in its capacity as party to a Secured Hedging Agreement and (2) expressly impacts such Lender or Affiliate in such capacity in a different manner than the Lenders are impacted generally shall require the consent of each such Lender or Affiliate; provided further that the Borrower may amend, modify or supplement Schedule 5.15 in accordance with Section 6.20 upon providing prior written notice and description of such amendment, modification or supplement to the Administrative Agent and the Borrowers may, with (without the consent of the Administrative Agent or any Lender), and (C) with respect to any amendments that subordinate the Liens, or the Secured Obligations in contractual right of payment, under the Loan Documents to other but without Indebtedness (any such other Indebtedness to which the Liens securing the Secured Obligations, or such Secured Obligations, under the Loan Documents are subordinated, the “Senior Indebtedness”), the written consent of each Lender directly adversely affected thereby shall be required, unless each such directly adversely affected Lender has been offered a bona fide opportunity to fund or otherwise provide its pro rata share of the Senior Indebtedness and to the extent such directly adversely affected Lender participates in the Senior Indebtedness, it receives its pro rata share of upfront fees, and any other similar benefit, paid by (or on behalf of) the Borrower in respect of the incurrence thereof.
(c) Without the consent of any other Person, amendthe applicable Borrower Party or Borrower Parties, modify as applicable, and the Administrative Agent may (in its or supplement this Agreement and any other Loan Document to cure any ambiguitytheir respective sole discretion, typographical or technical errorshall, defect or inconsistency. Notwithstanding anything to the contrary hereinextent required by any Loan Document) enter into any waiver, no Defaulting Lender shall have amendment or modification of any right Loan Document, or enter into any new agreement or instrument, in each case to approve effect the granting, perfection, protection, expansion or disapprove enhancement of any amendmentsecurity interest in any Collateral or additional Property to become Collateral for the benefit of the Secured Parties, waiver or consent hereunder which does not require as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any Property or so that the security interests therein comply with applicable Governmental Requirements.
(d) The Administrative Agent (and, if applicable, the Borrower) may, without the consent of each affected Lender (it being understood that any Commitments Lender, enter into amendments or Loans held modifications to this Agreement or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring other Loan Documents or enter into additional Loan Documents in order to implement any consent Benchmark Replacement or any Conforming Changes or otherwise effectuate the terms of less than all affected LendersSection 2.14(c) in accordance with the terms of Section 2.14(c).
Appears in 2 contracts
Samples: Credit Agreement (Genesis Energy Lp), Credit Agreement (Genesis Energy Lp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Intermediate Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on Intermediate Holdings or the Borrower in any case shall entitle Intermediate Holdings or the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)any Revolving Increase Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Intermediate Holdings, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdingseach of Intermediate Holdings and the Borrower, the Borrowers if they are parties thereto, and the Administrative Agent Agent, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount final maturity of any Loan or L/C the required date of reimbursement of any LC Disbursement, or any required date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such required payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, 9.02 or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender, (vi) release all or substantially all of the Guarantors Intermediate Holdings from their obligations its Guarantee under the U.S. Guarantee and Security Agreement and (except as expressly provided in the Foreign Guarantee and Security Agreement Agreement), or limit its liability in respect of such Guarantee, without the written consent of each Lender, or (viiviii) release all or substantially all change the definition of the Collateral from term “Interest Period” to permit the Lien Borrower to select interest periods of the Collateral Documents, 9 or 12 months for Eurodollar Borrowings without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lenderaffected thereby; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder under this Agreement or the Guarantee Agreement without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be and be. In connection with any proposed amendment, modification, waiver or termination (2a “Proposed Change”) requiring the Administrative Agent and the Borrowers mayconsent of all affected Lenders, with if the consent of the other Required Lenders to such Proposed Change is obtained, but without the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 9.02(b) being referred to as a “Non-Consenting Lender”), then, so long as the Lender that is acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower’s request, any assignee that is reasonably acceptable to the Administrative Agent (and that is not a Non-Consenting Lender) shall have the right, with the prior consent of the Administrative Agent, the Swingline Lender and each Issuing Bank (which consent (x) shall not be unreasonably withheld or delayed and (y) in the case of any other Personconsent required by any Issuing Bank, amendshall be deemed to have been given in the event that such Issuing Bank fails to respond in writing to a request for consent within two Business Days of receipt thereof), modify to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Borrower’s request, sell and assign to such assignee, at no expense to such Non-Consenting Lender (including with respect to any processing and recordation fees that may be applicable pursuant to Section 9.04(b)(ii)(c), which shall be paid by the assignee or supplement this Agreement the Borrower), all the Commitments and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything Revolving Exposure of such Non-Consenting Lender for an amount equal to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent principal balance of each affected Lender all Revolving Loans (it being understood that any Commitments or and funded participations in Swingline Loans held or deemed and unreimbursed LC Disbursements) held by any Defaulting such Non-Consenting Lender shall and all accrued interest, fees and other amounts with respect thereto through the date of sale (including amounts under Sections 2.14, 2.15 and 2.16), such purchase and sale to be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lendersconsummated pursuant to an executed Assignment and Acceptance in accordance with Section 9.04(b) (which Assignment and Acceptance need not be signed by such Non-Consenting Lender).
Appears in 2 contracts
Samples: Credit Agreement (Seagate Technology), Credit Agreement (Seagate Technology)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Collateral Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company either Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)an Incremental Amendment, Section 2.23 with respect to an Extension Amendment and Section 2.25 with respect to a Refinancing Amendment, and except as otherwise expressly provided in Section 9.19, neither this Agreement nor Agreement, any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, thereon or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that (x) any amendment to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest for purposes of this clause (ii) even if the effect of such amendment would be to reduce the rate of interest on any Loan or any LC Disbursement or to reduce any fee payable hereunder and (y) only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) reduce or to waive any obligation of the Borrowers to pay interest or fees at the applicable default rate set forth thereinin Section 2.13(c), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C DisbursementLC Disbursement (other than any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.11, in each case which shall only require the approval of the Required Lenders), or any interest thereonthereon (other than interest payable at the applicable default rate of interest set forth in Section 2.13(c)), or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly and adversely affected thereby, (v) change any of the provisions of this Section 9.02, 9.02 or the definition definitions of “Required Lenders” or the definition of “Alternative CurrenciesMajority in Interest” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Term Loans are included on the Closing Date), (vi) release all or substantially all of the Subsidiary Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Subsidiary Guaranty without the written consent of each Lender, (vii) except as provided in Section 9.13 or in any Collateral Document, release all or substantially all of the Collateral from the Lien of the Collateral DocumentsCollateral, without the written consent of each Lender or (viii) contractually subordinate change any provisions of any Loan Document in a manner that by its terms adversely affects the payment rights in respect of the Obligations payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt Class without the written consent of Lenders representing a Majority in Interest of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent)adversely affected Class; provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Collateral Agent, the Issuing Bank or the Swingline Lender, as the case may be and be.
(2c) Notwithstanding the Administrative Agent and the Borrowers mayforegoing, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (x) to cure add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Amendment and any ambiguityCredit Agreement Refinancing Indebtedness pursuant to a Refinancing Amendment) to this Agreement and to permit 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 Revolving Loans, typographical the Term Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders, and for purposes of the relevant provisions of Section 2.18(b).
(d) If, in connection with any proposed amendment, waiver or technical errorconsent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, defect but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrowers may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided that, concurrently with such replacement, (i) another bank or inconsistencyother entity (which is reasonably satisfactory to the Borrowers and the Administrative Agent) shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrowers shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by each Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender and (3) any amounts owing to such Lender pursuant to Section 2.12(d). A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply.
(e) Notwithstanding anything to the contrary herein, no Defaulting Lender (i) if following the Closing Date, the Administrative Agent and any Loan Party shall have jointly identified an ambiguity, inconsistency, obvious error or any right 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 applicable Loan Parties shall be permitted to approve or disapprove amend such provision and such amendment shall become effective without any amendment, waiver further action or consent hereunder which does of any other party to any Loan Documents if the same is not require objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof and (ii) guarantees, collateral security agreements, pledge agreements and related documents (if any) executed by the Loan Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, supplemented and/or waived with the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote the Administrative Agent at the request of the Lenders hereunder requiring any Lux Borrower without the input or need to obtain the consent of less than all affected Lenders)any other Lenders if such amendment or waiver is delivered in order (x) to comply with local law or advice of local counsel, (y) to cure ambiguities, omissions or defects or (z) to cause such guarantees, collateral security agreements, pledge agreement or other documents to be consistent with this Agreement and the other Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Endo International PLC), Credit Agreement (Endo International PLC)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company a Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers a Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, Lender or (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Company may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans (as determined by the applicable Borrower in good faith), except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
Appears in 2 contracts
Samples: Credit Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Waivers; Amendments. (a) No failure or delay by on the part of the Administrative Agent, any the Issuing Bank or any Lender to exercise and no delay in exercising exercising, and no course of dealing with respect to, any right right, power or privilege, or any abandonment or discontinuance of steps to enforce such right, power hereunder or privilege, under any other of the Loan Document Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any such right right, power or power, or privilege under any abandonment or discontinuance of steps to enforce such a right or power, the Loan Documents preclude any other or further exercise thereof or the exercise of any other right right, power or powerprivilege. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.0212.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document provision hereof nor any Security Instrument nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Majority Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Majority Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).such
Appears in 2 contracts
Samples: Senior Revolving Credit Agreement (Petrohawk Energy Corp), Senior Revolving Credit Agreement (Petrohawk Energy Corp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement clause (b) or pursuant to any other Loan Document (fee letter entered into by the Borrower in connection with respect to such Loan Document)this Agreement, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders (except that, so long as the Tranche B Term Loans (and any similar incremental term loans under Section 2.04(b)) are not subject to an Event of Default pursuant to clause (d) of Article VII, any waivers, amendments or modifications to Section 6.11 (and related definitions) shall only require an agreement in writing entered into by Holdingsthe Borrower and the Required Pro Rata Lenders unless the Revolving Commitments have terminated and the Revolving Loans and Tranche A Term Loans have been paid in full along with the cancellation and return of all outstanding Letters of Credit (or alternatively, with respect to each such Letter of Credit, the Borrowers and furnishing to the Administrative Agent with of a cash deposit (or at the consent discretion of the Required LendersAdministrative Agent a back up standby letter of credit satisfactory to the Administrative Agent) equal to the LC Exposure as of such date)) or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees or other amounts payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C DisbursementLC Disbursement (other than any reduction of the amount of, or any interest thereonextension of the payment date for, the mandatory prepayments required under Section 2.11, in each case which shall only require the approval of the Required Lenders), or any date for the payment of any interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of ”, “Alternative CurrenciesRequired Pro Rata Lenders” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender, (vi) release all or substantially all of the Subsidiary Guarantors from their obligations obligation under the U.S. Guarantee and Security Agreement and Subsidiary Guaranty (except as otherwise permitted herein or in the Foreign Guarantee and Security Agreement other Loan Documents), without the written consent of each Lender, or (vii) except as provided in clause (c) of this Section or in any Collateral Document, release all or substantially all of the Collateral from the Lien of the Collateral DocumentsCollateral, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be and (2) the be. The Administrative Agent and may also amend the Borrowers mayCommitment Schedule to reflect assignments entered into pursuant to Section 9.04. Notwithstanding the foregoing (including without limitation clause (v) of Section 9.02(b) above), with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, Lenders providing one or more additional credit facilities, the Administrative Agent and the Borrower (x) to cure 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 (collectively, the “Incremental Credits”) to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Loans and Term Loans and other extensions of credit hereunder and the accrued interest and fees in respect thereof, (y) to include reasonably appropriately the Lenders holding such credit facilities in any ambiguitydetermination of the Required Lenders and (z) to make such other technical amendments as are reasonably deemed appropriate by the Administrative Agent and the Borrower in connection with the foregoing.
(c) The Lenders hereby irrevocably authorize the Administrative Agent to, typographical or technical errorand the Administrative Agent hereby agrees with the Borrower that it shall (so long as no Event of Default has occurred and is continuing), defect or inconsistency. Notwithstanding anything release any Liens granted to the contrary herein, no Defaulting Lender shall have Administrative Agent by the Loan Parties on any right to approve or disapprove any amendment, waiver or consent hereunder which does not require Collateral (i) upon the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote termination of the Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to the Administrative Agent, (ii) constituting property being sold or disposed of if the Borrower certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property leased to the Borrower or any Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders hereunder requiring pursuant to Article VII. Any such release shall not in any consent manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of less the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral and the Administrative Agent shall not be required to execute any such release on terms which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent to liability or create any obligation or entail any consequence other than all affected Lenders)the release of such Liens without recourse or warranty.
Appears in 2 contracts
Samples: Amendment and Restatement Agreement (Dean Foods Co), Credit Agreement (Dean Foods Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided (x) in this Agreement or any other Loan Document (Section 2.20 with respect to such an Incremental Term Loan DocumentAmendment or an increase in the Revolving Commitments by any Increasing Lender or Augmenting Lender, (y) Section 2.22(b) with respect to any Defaulting Lender or (z) as provided in Section 2.14(c), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided thereby (except that only the consent neither (A) any amendment or modification of the Required Lenders shall be necessary to amend Section 2.12(cfinancial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) or (B) any amendment entered into pursuant to waive any obligation the terms of the Borrowers to pay interest at Section 2.14(c) shall constitute a reduction in the rate set forth thereinof interest or fees for purposes of this clause (ii)), (iii) postpone the scheduled date of payment or amortization of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such paymentpayment or amortization, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected therebythereby (other than any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.11, in each case which shall only require the approval of the Required Lenders), (iv) change Section 2.17(b2.09(c) or 2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the ratable reduction of Commitments or the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change the payment waterfall provisions of Section 2.22(b) without the written consent of each Lender, (vi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Revolving Loans are included on the Effective Date), (vivii) release Holdings or all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, Guaranty without the written consent of each Lender or (viii) contractually subordinate the payment except as provided in clause (d) of this Section or in any Collateral Document, release all or substantially all of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt Collateral, without the written consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.22 shall require the consent of the Administrative Agent, the Issuing Bank and the Swingline Lender). Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (2i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other modification.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit 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 Revolving Loans, the initial Term Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) Furthermore, and notwithstanding anything contained in this Section to the contrary, in order to accommodate extensions of credit to the Borrowers where one or more Revolving Lenders are legally able and willing to lend Revolving Loans to the Borrowers, and participate in Letters of Credit issued for the account of the Borrowers or one of their Subsidiaries, in each case in Foreign Currencies but other Revolving Lenders are not so able and willing, the Administrative Agent shall be permitted, with the consent of the Borrowers and a majority in interest of the Revolving Commitments of such able and willing Revolving Lenders (but no other Lenders), to effect (pursuant to an amendment or an amendment and restatement of this Agreement) such changes to the provisions of this Agreement (including without limitation to create separate dollar tranche(s) and multicurrency tranche(s) of the Revolving Commitments and to modify the definitions of, inter alia, “Agreed Currencies” and “Required Lenders” to incorporate and/or give effect to such tranche(s)) as the Administrative Agent reasonably believes are appropriate in order for such provisions to provide procedures for the Revolving Lenders who are so able and willing to so extend credit and for the other Revolving Lenders not to be required to so extend credit. Prior to effecting any such changes, the Administrative Agent shall give all Revolving Lenders at least five (5) Business Days’ notice thereof and an opportunity to comment thereon.
(e) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of all the Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Swap Obligations not yet due and payable, Banking Services Obligations not yet due and payable, Unliquidated Obligations for which no claim has been made and other Obligations expressly stated to survive such payment and termination), and the cash collateralization of, or issuance of backup letter(s) of credit with respect to, all Unliquidated Obligations in a manner reasonably satisfactory to the Administrative Agent, (ii) constituting property being sold or disposed of if (x) Holdings certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry) or such sale or disposition is made pursuant to a waiver or consent hereunder, (iii) constituting property leased to Holdings or any Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Any such release shall not in any manner discharge, affect, or impair the Secured Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(f) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then Holdings may elect to replace any such Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to Holdings and, if such bank or other entity is not already a Lender hereunder, the Administrative Agent shall agree, as of such date, (A) to purchase for cash the Loans and other Obligations due to such Non-Consenting Lender pursuant to an Assignment and Assumption, (B) if applicable, to become a Lender for all purposes under this Agreement, (C) to assume all obligations of the Non-Consenting Lender to be terminated as of such date and (D) to comply with the requirements of clause (b) of Section 9.04, (ii) each Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Non-Consenting Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender and (iii) such Non-Consenting Lender shall have received the outstanding principal amount of its Loans and participations in LC Disbursements. Each party hereto agrees that (a) an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (b) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.
(g) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrowers only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
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Waivers; Amendments. (a) No failure or delay by the Administrative any Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative AgentAgents, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings any Loan Party or the Company Subsidiary thereof therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative any Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (with respect to such Loan Document)Section 2.20, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall shall:
(i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, ,
(ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only ,
(iii) amend, modify or waive the requirements of Section 2.11(b), including, without limitation, solely for purposes thereof, each definition used therein or otherwise directly related thereto (such as, but not limited to, the definitions of Asset Sale Allowance, Free Cash Flow, Free Cash Flow Percentage, and Prepayment Event), without (1) the written consent of the Required Term Loan Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation holding more than 50% of the Borrowers to pay interest aggregate principal amount of the Term Loans at such time and (2) Revolving Lenders holding more than 50% of the rate set forth therein, aggregate of the Revolving Credit Exposures and unused Revolving Commitments at such time.
(iiiiv) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereonthereon (other than the waiver of default interest), or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any CommitmentCommitment (other than with respect to the foregoing, any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.11 in each case which shall require the approval of the Lenders identified in the foregoing Section 9.02(b)(iii)), without the written consent of each Lender directly affected thereby; provided, that no extension of the Revolving Loan Maturity Date shall be deemed to directly affect any Term Loan Lender, and subject to the following proviso, the only Lenders entitled to vote to extend the Revolving Loan Maturity Date shall be those Revolving Lenders directly affected thereby (ivwith the understanding that an extension of the Revolving Loan Maturity Date shall not apply to any Revolving Lender that does not approve such extension); provided, further, that (x) no change in the Applicable Margin for such approving Revolving Lenders shall require the approval of any Lenders other than all such approving Revolving Lenders (which all would be subject to the same change) so long as such change does not result in the Applicable Margin for Revolving Loans and related Letter of Credit obligations held by the approving Revolving Lenders exceeding the Applicable Margin for Term Loan Lenders, and (y) no other amendment or modification shall be made in connection with an extension of the Revolving Loan Maturity Date (including, without limitation, amendments to or modifications of covenants or Events of Default) without the approval of the Lenders otherwise required under this Section 9.02.
(v) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, Lender,
(vvi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, ,
(vii) release all any Loan Party Guarantor that is a Borrower or substantially all of the Collateral a Material Subsidiary from the Lien of the Collateral Documents, its obligations under its Loan Party Guaranty without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such changerelease provided for in Section 5.09 shall require the vote of any Lender under this clause (vii), waiveror
(viii) except as provided in clauses (c) and (d) of this Section, discharge except in conjunction with a release of a Borrower or termination shalla Loan Party Guarantor from its Loan Party Guaranty as permitted by this Section 9.02(b), or except as provided in any Collateral Document, release the Collateral of any Borrower or any Loan Party Guarantor that is a Material Subsidiary, without the written consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent)Lender; provided, further, that no release provided for in Section 5.09 shall require the vote of any Lender under this clause (1) viii); provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative any Agent, any an Issuing Bank or the a Swingline Lender hereunder without the prior written consent of the Administrative such Agent, the relevant such Issuing Bank or the such Swingline Lender, as the case may be. The Administrative Agent may also amend Schedule 2.01 to reflect assignments entered into pursuant to Section 9.04.
(c) The Lenders hereby irrevocably authorize each Agent, at its option and in its sole discretion, to (1) release any Liens granted to such Agent by the Loan Parties on any Collateral (i) upon the termination of all Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to the Administrative Agent (with a corresponding release of the Loan Party Guarantors from their Loan Party Guarantees), (ii) constituting property being sold or disposed of if the U.S. Borrower certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry); provided, that there also shall be a corresponding release of a Loan Party Guarantor from its Loan Party Guaranty if such Loan Party Guarantor’s Equity Interests are the subject of such permitted sale or disposition, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of such Agent and the Lenders pursuant to Article VII (including, if applicable, a corresponding release of a Loan Party Guarantor from its Loan Party Guaranty), and (2) the Administrative Agent and the Borrowers may, take any actions deemed appropriate by it in connection with the consent grant by any Loan Party or any Subsidiary of Liens of the type described in clauses (c) through (l) of Section 6.02 (including without limitation, by executing appropriate lien releases or lien subordination agreements in favor of the holder or holders of such Liens, in either case solely with respect to the item or items of equipment or other but without assets subject to such Liens). Any such release shall not in any manner discharge, affect, or impair the consent Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any other Personsale, amendall of which shall continue to constitute part of the Collateral.
(d) If, modify or supplement this Agreement and in connection with any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any proposed amendment, waiver or consent hereunder which does not require requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non Consenting Lender”), then the U.S. Borrower may elect to replace a Non Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the U.S. Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrowers shall pay to such Non Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non Consenting Lender by the Borrowers hereunder to and including the date of termination, including, without limitation payments due to such Non Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non Consenting Lender been prepaid on such date rather than sold to the replacement Lender. If a Non Consenting Lender is replaced pursuant to this Section 9.02(d) on or before the first anniversary of the Funding Date, then such Non Consenting Lender shall receive a replacement premium from the Borrowers on the date on which it being understood that any Commitments or is replaced equal to 1.0% times the aggregate principal amount of Term Loans held or deemed held by any Defaulting such Non Consenting Lender shall be excluded for a vote at the time of the Lenders hereunder requiring any consent of less than all affected Lenders)its replacement.
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth necessary in this Agreement or any other Loan Document (order to effect an increase in the Revolving Commitments in accordance with respect to such Loan Document)Section 2.20, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by HoldingsParent, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the any Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereonthereon (other than a waiver of post-default additional interest as specified in Section 2.13(c)), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees or other amounts payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative CurrenciesMajority in Interest” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of a Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class), (vi) release all or substantially all of the Guarantors Parent from their obligations its Guarantee under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent Agreement, or limit its liability in respect of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentssuch Guarantee, without the written consent of each Lender or (viiivii) contractually subordinate change any provisions of any Loan Document in a manner that by its terms adversely affects the payment rights of Lenders of either Class differently than those of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shallClass, without the written consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any Lenders representing a Majority in Interest of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood affected Class; provided further that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Parent, the Borrower, the Required Lenders and (2) the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Banks and the Borrowers maySwingline Lender) if (i) by the terms of such agreement the Revolving Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, with the consent each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other but without the consent of any other Person, amend, modify amounts owing to it or supplement accrued for its account under this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistencyAgreement. Notwithstanding anything to the contrary hereincontained in this Agreement, no Defaulting Lender in connection with the satisfaction of the Guarantee Requirement as it relates to the Acquired Company and its subsidiaries and as may otherwise be necessary in connection with the Acquisition, the Borrower shall be permitted to supplement the Schedules as provided in Sections 3.06, 6.01, 6.02, 6.04 and 6.06 on or prior to the Acquisition Date to include or correct items relating to the Acquired Company and its Subsidiaries, provided that any such items (i) are of the type required by the Acquisition Agreement to be disclosed on the Acquisition Agreement Disclosure Schedules or are subject to restrictions included in the Acquisition Agreement and (ii) shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote been disclosed in corresponding sections of the Lenders hereunder requiring any consent of less than all affected Lenders)Acquisition Agreement Disclosure Schedules or shall have been expressly permitted to be incurred by the Acquired Company and its Subsidiaries during the period from October 15, 2013 until the Acquisition Date in accordance with the Acquisition Agreement, in each case unless otherwise agreed to by the Administrative Agent.
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document the first sentence of Section 2.09(f) (with respect to such Loan Documentany commitment increase), Section 2.14(b) with respect to an alternate rate of interest to the LIBO Rate or Section 6.03
(c) with respect to changes in fiscal year, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall shall: (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby(including any such Lender that is a Defaulting Lender); provided that, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, ; (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” any amendment or (y) increase any advance rate or otherwise amend any modification of the following definitions, financial covenants in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory this Agreement (including, in each case, the or defined terms used thereinin the financial covenants in this Agreement) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will shall not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).124
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document nor consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in None of this Agreement or Agreement, any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor or any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders and, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; providedprovided that the Borrower, the Administrative Agent and the Lenders consenting to the Borrower’s request for any extension of the Maturity Date in accordance with Section 2.20 or providing any Commitment Increase in accordance with Section 2.21 may enter into any amendment necessary to implement the terms of such extension or the terms of such Commitment Increase in accordance with the terms of this Agreement without the consent of any other Lender; provided further that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereonthereon (other than as a result of any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.12(c)), or reduce any fees or other amounts (to the extent that such other amounts are then due and payable) payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C any LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a2.17(c) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (vi) release all or substantially all change any of the Guarantors from their obligations under provisions of Section 2.19, without the U.S. Guarantee and Security Agreement prior written consent of the Administrative Agent, the Issuing Banks and the Foreign Guarantee and Security Agreement Swingline Lender or (vii) release any material Guarantor from its Subsidiary Guarantee, except as provided in Section 9.09, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistencybe. Notwithstanding anything to the contrary hereinforegoing, no Defaulting Lender shall have any right consent with respect to approve or disapprove any amendment, waiver or consent hereunder which does not require other modification of this Agreement or any other Loan Document shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) above and then only in the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any event such Defaulting Lender shall be excluded for affected by such amendment, waiver or other modification.
(c) The Administrative Agent may, but shall have no obligation to, with the written concurrence of any Lender, execute amendments, waivers or other modifications on behalf of such Lender. Any amendment, waiver or other modification effected in accordance with this Section 9.02 shall be binding upon each Person that is at the time thereof a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)Lender and each Person that subsequently becomes a Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Marathon Petroleum Corp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank Purchaser Representative or any Lender Purchaser in exercising any right or power hereunder or under any other Loan Note Document shall operate as a waiver thereofthereof except as provided herein or in any Note Document, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Purchaser Representative and the Lenders Purchasers hereunder and under the any other Loan Documents Note Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Note Document or consent to any departure by Holdings or the Company any party hereto therefrom shall in any event be effective unless the same shall be is permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given. Without limiting the generality of the foregoing, to the making extent permitted by applicable Requirements of a Loan or issuance Law, the purchase of a Letter of Credit any Note shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender Purchaser Representative or any Issuing Bank Purchaser may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document Subject to Sections 9.02(b) through (with respect d) below and to such Loan DocumentSection 9.05(f), neither this Agreement nor any other Loan Note Document nor any provision hereof or thereof may be waived, amended or modified modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Issuer and the Required Lenders Purchasers (or by Holdings, the Borrowers and the Administrative Agent Purchaser Representative with the consent of the Required LendersPurchasers) or (ii) in the case of any other Note Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Note Document), pursuant to an agreement or agreements in writing entered into by the Required Purchasers and each Note Party that is party thereto; providedprovided that, that no such agreement notwithstanding the foregoing:
(A) the consent of each Purchaser directly and adversely affected thereby (but not the consent of the Required Purchasers) shall be required for any waiver, amendment or modification that:
(i1) increase increases the Commitment of such Purchaser (other than with respect to any Lender without the written consent Additional Note pursuant to Section 2.22 in respect of each Lender directly affected thereby, which such Purchaser has agreed to be an Additional Purchaser); it being understood that a no amendment, modification or waiver of of, or consent to departure from, any condition precedent set forth in Section 4.02 or the waiver precedent, representation, warranty, covenant, Default, Event of any Default or mandatory prepayment reduction of the Commitments shall not constitute an increase of any Commitment of any Lender, such Purchaser;
(ii2) reduce reduces the principal amount of any Loan Note owed to such Purchaser or L/C Disbursement any amount due to such Purchaser on the Maturity Date;
(3) (x) extends the scheduled final maturity of any Note held by such Purchaser or reduce (y) postpones any Interest Payment Date with respect to any Note held by such Purchaser hereunder (in each case, other than any extension for administrative reasons agreed by the Purchaser Representative);
(4) reduces the rate of interest (other than to waive any Default or premium thereonEvent of Default or any obligation of the Issuer to pay interest to such Purchaser at the default rate of interest under Section 2.15(d), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that which shall only require the consent of the Required Lenders shall be necessary to amend Section 2.12(cPurchasers) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan fee or L/C Disbursementpremium owed to such Purchaser; it being understood that no change in the definition of “Consolidated Adjusted EBITDA” or any other financial test, or in the calculation of any other interest, fee or premium due hereunder (including any component definition thereof) shall constitute a reduction in any rate of interest thereonor fee hereunder;
(5) extends the expiry date of such Purchaser’s Commitment; it being understood that no amendment, modification or waiver of, or consent to departure from, any fees payable hereundercondition precedent, representation, warranty, covenant, Default, Event of Default or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration mandatory reduction of any CommitmentCommitment shall constitute an extension of any Commitment of any Purchaser; or
(6) waives, without amends or modifies the written consent provisions of each Lender directly affected thereby, (ivI) change Section 2.17(bSections 2.21(a) or (c), Section 9.08(a) or the CAM Exchange of this Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby (except in connection with any transaction permitted under Sections 2.22 and/or 9.05(g) or change as otherwise provided in this Section 9.02) or (II) Section 2.21(b);
(7) waives, amends or modifies the order provisions of application specified in Section 2.22(dArticle 10 that adversely affects the Conversion Rights of any Notes (other than any Second Amendment Delayed Draw Notes and any Third Amendment Notes) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, hereunder;
(vB) no such agreement shall:
(1) change (x) any of the provisions of this Section 9.02, 9.02(a) or Section 9.02(b) or the definition of “Required Lenders” or the definition of “Alternative Currencies” or Purchasers”, in each case to reduce any other provision hereof specifying the number or voting percentage of Lenders required to waive, amend or modify any rights hereunder right thereunder or make any determination or grant any consent hereunder thereunder, without the prior written consent of each LenderPurchaser, (viy) release all or substantially all the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement “Required Delayed Draw Purchasers” without the written consent of each Lender, Delayed Draw Purchaser (viiit being understood that neither the consent of the Required Purchasers nor the consent of any other Purchaser shall be required in connection with any change to the definition of “Required Delayed Draw Purchasers”) or (z) the definition of “Required Additional Purchasers” without the consent of each Additional Purchaser (it being understood that neither the consent of the Required Purchasers nor the consent of any other Purchaser shall be required in connection with any change to the definition of “Required Additional Purchasers”);
(2) (A) release all or substantially all of the Collateral from the Lien of granted pursuant to the Collateral Note Documents (except as otherwise permitted herein or in the other Note Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender Purchaser or (viiiB) contractually subordinate the Lien on any of the Collateral securing the Secured Obligations or subordinate the payment priority of any of the Obligations to any other Indebtedness or subordinate for borrowed money (other than in connection with (I) any Acceptable Debtor-In-Possession Financing and/or (II) any other financing with respect to which each Purchaser has been offered the Liens on the ABL Priority Collateral in favor of the Administrative Agent opportunity to Liens securing other Funded Debt provide such financing without the prior written consent of each LenderPurchaser, in the case of this clause (II), to the extent such Purchaser is offered a reasonable, bona fide opportunity to participate on a pro rata basis in any such Indebtedness on substantially the same terms as all other Purchasers, which offer shall remain open to such Purchaser for a period of not less than five Business Days; provided, that no if any such changePurchaser does not accept such offer to provide its pro rata share of such Indebtedness in writing within five Business Days of receipt of such offer, waiversuch Purchaser shall be deemed to have declined such offer); provided that the amendment of Section 6.01 and/or Section 6.02 to permit the incurrence of additional obligations that are secured by the Collateral on a pari passu basis with the “Secured Obligations” (or equivalent term) under the First Lien Facility shall not be subject to this clause (B)(2)(B); or
(3) release all or substantially all of the value of the Guarantees under the Note Guaranty (except as otherwise permitted herein or in the other Note Documents, discharge or termination shallincluding pursuant to Section 9.22 hereof), without the prior written consent of each Purchaser;
(C) solely with the consent of the Required Additional Purchasers with respect to any Additional Note Commitment (but without the consent of the Supermajority LendersRequired Purchasers or any other Purchaser), any such agreement may waive, amend or modify any condition precedent set forth in Section 4.03 (xother than Section 4.03(d)) amend as it pertains to any Additional Notes Issuance in respect of any Additional Note Commitment;
(D) solely with the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any consent of the following definitionsRequired Delayed Draw Purchasers (but without the consent of the Required Purchasers or any other Purchaser), any such agreement may waive, amend or modify any condition precedent set forth in each case the effect Section 4.02 or Section 4.03 (other than Section 4.03(d)) as it pertains to any Issuance of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory Delayed Draw Notes; and
(including, in each case, the defined terms used thereinE) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance solely with the terms hereofconsent of the Required Second Amendment Delayed Draw Purchasers (but without the consent of the Required Purchasers or any other Purchaser), will not be deemed any such agreement may waive, amend or modify any condition precedent set forth in Section 4.03 (other than Section 4.03(d)) as it pertains to require a Supermajority Lender consentany Issuance of Second Amendment Delayed Draw Notes); provided, further, that and
(1F) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender Purchaser Representative hereunder without the prior written consent of the Administrative AgentPurchaser Representative.
(c) [Reserved].Notwithstanding anything to the contrary contained in this Section 9.02, the relevant Issuing Bank any agreement to waive, amend or the Swingline Lendermodify any condition set forth in Section 4.03 or Section 2.02(c) or any defined term used directly or indirectly in such provisions, in each case, as it pertains to any Issuance of, or funding with respect to the case may be and (2) Third Amendment Notes, shall require the Administrative Agent and the Borrowers may, with the prior written consent of the other but without Required Purchasers and each of the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Third Amendment Purchasers.
(d) Notwithstanding anything to the contrary hereincontained in this Section 9.02 or any other provision of this Agreement or any provision of any other Note Document:
(i) the Issuer and the Purchaser Representative may, without the input or consent of any Purchaser, amend, supplement and/or waive any provision of this Agreement and/or any guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in connection with this Agreement to (A) comply with any Requirement of Law or the advice of counsel or (B) cause any such guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant other Note Documents,
(ii) [reserved],
(iii) [reserved],
(iv) the Purchaser Representative and the Issuer may amend, restate, amend and restate or otherwise modify any Intercreditor Agreement and/or any other Additional Agreement as provided therein,
(v) the Purchaser Representative may amend Schedule 2.01 to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations pursuant to Section 2.11, issuances of First Amendment Notes or Third Amendment Notes pursuant to Section 2.02 and/or, Second Amendment Delayed Draw Notes or Delayed Draw Notes pursuant to Section 2.03 and reductions or redemptions of any such First Amendment Notes, Second Amendment Delayed Draw Notes, Third Amendment Notes, Delayed Draw Notes or issuances of Additional Notes pursuant to Section 2.25 and reductions or redemptions of any such Additional Notes,
(vi) [reserved],
(vii) no Defaulting Lender Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does hereunder, except as permitted pursuant to Section 2.24(a) and except that the Commitment of any Defaulting Purchaser may not require be increased without the consent of each affected Lender such Defaulting Purchaser (it being understood that any Commitments Commitment or Loans Note held or deemed held by any Defaulting Lender Purchaser shall be excluded for a from any vote hereunder that requires the consent of any Purchaser, except as expressly provided in Section 2.24(a)),
(viii) this Agreement may be amended (or amended and restated) with the written consent of the Lenders hereunder requiring Required Purchasers and the Issuer (i) to add one or more additional debt facilities to this Agreement and to permit any extension of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other Note Documents and (ii) to include appropriately the Purchasers holding such debt facilities in any determination of the Purchasers on substantially the same basis as the Purchasers prior to such inclusion,
(ix) any amendment, waiver or modification of any term or provision that directly affects Purchasers under one or more Classes and does not directly and adversely affect Purchasers under one or more other Classes may be effected with the consent of less than all Purchasers owning 50% of the aggregate commitments or Notes of such directly affected LendersClass in lieu of the consent of the Required Purchasers, and
(x) [reserved];
(xi) this Agreement may be amended in the manner prescribed in Section 2.25; it being understood and agreed that any such amendment may provide that with respect to any Class of Notes and/or Commitments that is structured as a “delayed draw” or similar facility, (i) any condition precedent to the funding of any Notes thereunder and/or (ii) any Event of Default arising as a result of any inaccuracy of any representation and/or warranty (including any certification) made in connection with the satisfaction of any such condition precedent, in each case, may be waived, amended or modified solely with the consent of a majority of the holders of such Notes and/or Commitments (or such other percentage of such holders as may be required in the amendment implementing such Class of Notes and/or Commitments (and without the consent of the Required Purchasers or any other Purchasers),
(xii) [reserved],
(xiii) except as otherwise provided in Section 9.02(b)(C) above, the Required Purchasers, without the consent of any other Purchaser, may (A) rescind any acceleration of the Notes and/or any other Obligation pursuant to Article 7 hereof and/or (B) agree that the Purchaser Representative and the Purchasers will forbear from exercising any remedy provided under any Note Document with respect to any Event of Default, and
(xiv) [reserved].
Appears in 1 contract
Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company a Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (bclause (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section Section 2.12(c) or to waive any obligation of the Borrowers a Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section Section 2.17(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, thereby or (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Company may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistencyinconsistency and such amendment shall become effective without any further action or the consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) 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 Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender Issuing Bank or any Issuing Bank Lender may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (with respect to such Loan DocumentSections 2.09(d), 2.21 and 2.23, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders, or in the case of the Guarantee Agreement, the Guarantor; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C the amount of any LC Disbursement or reduce the rate of interest thereon (other than a waiver of post-default additional interest as specified in Section 2.13(a)) (it being understood that any amendments to Section 2.22 or premium thereonto the component definitions thereof shall not constitute a reduction in rate of interest), or reduce any fees payable to any Lender hereunder, without the written consent of each Lender directly adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C the scheduled date of payment of any LC Disbursement, or any interest thereonthereon (other than a waiver of post-default additional interest as specified in Section 2.13(e)) (it being understood that any amendments to Section 2.22 or to the component definitions thereof shall not constitute an extension to the date of any payment of interest), or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly adversely affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly adversely affected thereby, thereby or (v) change any of the provisions of this Section 9.02, 9.02(b) or the definition of “Required Lenders” or (other than any change to the definition of “Alternative CurrenciesRequired Lenders” necessary for any new class of Lenders to be treated on the same basis as existing Lenders) or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent Bank. Notwithstanding any of the foregoing, (A) no consent with respect to any amendment, waiver or other but without the consent modification of any other Person, amend, modify or supplement this Agreement and or any other Loan Document shall be required of (1) any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be affected by such amendment, waiver or other modification or (2) any Lender that receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and upon the effectiveness of such amendment, waiver or other modification, (B) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by the Borrower and the Administrative Agent to cure any ambiguity, typographical or technical erroromission, defect or inconsistency. Notwithstanding anything inconsistency so long as, in each case, the Lenders shall have received at least five Business Days prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the contrary hereinLenders, no Defaulting Lender shall have a written notice from (x) the Required Lenders stating that the Required Lenders object to such amendment or (y) any right Issuing Bank affected by such amendment stating that it objects to approve or disapprove any such amendment, waiver or consent hereunder which does not require and (C) this Agreement may be amended to provide for Additional Credit Commitments in the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held manner contemplated by any Defaulting Lender shall be excluded for a vote Section 2.09(d) and the extension of the Lenders hereunder requiring Maturity Date as provided in Section 2.21, in each case without any consent of less than all affected Lenders)additional consents.
Appears in 1 contract
Samples: Credit Agreement (NEWMONT Corp /DE/)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (ix) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, (vix) release increase the aggregate Commitments in excess of $600 million, without the written consent of each Lender[reserved] or (xi) subordinate the Liens on all or substantially all the value of the Guarantors from their obligations under Collateral to the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Liens securing any other Indebtedness, or contractually subordinate with respect to payment any Obligations, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04
(c) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of the all Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $1 million during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything .
(f) In addition, notwithstanding the foregoing, this Agreement, including this Section 9.02, and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.23 to add any Incremental Term Loan Facility to this Agreement and (a) to permit the contrary herein, no Defaulting Lender shall have any right extensions of credit from time to approve or disapprove any amendment, waiver or consent hereunder which does not require time outstanding thereunder and the consent accrued interest and fees in respect thereof to share ratably in the benefits of each affected Lender this Agreement (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote including the rights of the Incremental Term Lenders hereunder requiring to share ratably in prepayments pursuant to Section 2.11), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any consent determination of less than all affected Lendersthe Required Lenders and (c) to amend other provisions of the Loan Documents so that the Incremental Term Loan Facility is appropriately incorporated (including this Section 9.02).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank, the Senior Tranche Issuing Bank, the LC Facility Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank, the Senior Tranche Issuing Bank, the LC Facility Issuing Bank and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, to the extent permitted by law, the making of a Loan Loan, the funding of an LC Facility Deposit or issuance issuing of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Issuing Bank, the Senior Tranche Issuing Bank, the LC Facility Issuing Bank or any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or, (ii) in the case of any other Loan Document (other than any such amendment to effectuate any modification thereto expressly contemplated by the terms of such other Loan Documents), pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Agent and the Administrative Agent Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, provided that no such agreement shall (iA) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, such Lender; it being understood that a waiver of any condition precedent set forth in Section 4.02 Article IV or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (iiB) reduce or forgive the principal amount of any Loan or L/C Disbursement reimbursement obligation hereunder with respect to LC Disbursements or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunderhereunder or change the currency in which any such amount is required to be paid, without the written consent of each Lender directly affected thereby; provided that only , (C) extend the date of which the LC Facility Deposits are required to be returned to the LC Facility Lenders, without the written consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth thereineach LC Facility Lender, (iiiD) postpone the any scheduled date of payment of the principal amount of any Loan or L/C DisbursementLoan, or any interest thereondate for the payment of any interest, fees or other Obligations payable hereunder or the reimbursement of any fees payable hereunderLC Disbursement, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend the provisions of Section 2.11(c) providing for the default rate of interest, or to waive any obligations of any Borrower to pay interest at such default rate, (ivE) change Section 2.17(b2.16(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected therebyLender, (vF) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative CurrenciesRequired Class Lenders” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender, (viG) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all value of the Collateral from Loan Guarantors (except as otherwise permitted herein or in the Lien of the Collateral other Loan Documents), without the written consent of each Lender or (viiiH) contractually subordinate the payment except as provided in clauses (c) and (d) of this Section or in any Collateral Document, release all or substantially all of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt Collateral, without the written consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise (x) affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender LC Facility Issuing Bank hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline LenderLC Facility Issuing Bank, as applicable or (y) make any change to the case documents that by its terms affects the rights of any Class of Lenders to receive payments in any manner different than any other Class of Lenders without the written consent of the Required Class Lenders of such Class; and provided, further, that no amendment, modification, waiver of or consent with respect to any of the terms and provisions (and related definitions) of Sections 6.10 shall be effective without the written consent of the Required Revolving Lenders and any such amendment, supplement, modification or waiver shall be effective and binding on all Lenders with the written consent of only the Required Revolving Lenders (or the Agent with the prior written consent thereof), on the one hand, and the Borrowers, on the other hand.
(c) The Lenders hereby irrevocably agree that the Liens granted to the Agent by the Loan Parties on any Collateral shall be automatically released (i) upon the Discharge of Obligations, (ii) upon the sale or other disposition of the property constituting such Collateral (including as part of or in connection with any other sale or other disposition permitted hereunder) to any Person other than another Loan Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Agent may be and rely conclusively on a certificate to that effect provided to it by any Loan Party upon its reasonable request without further inquiry), (2iii) subject to paragraph (b) of this Section 9.02, if the Administrative release of such Lien is approved, authorized or ratified in writing by the Required Lenders, (iv) to the extent the property constituting such Collateral is owned by any Loan Guarantor, upon the release of such Guarantor from its obligations under its Loan Guaranty in accordance with the provisions of this Agreement or (v) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Agent and the Borrowers Lenders pursuant to the Collateral Documents; provided that the Agent may, with in its discretion, release the consent Lien on Collateral valued in the aggregate not in excess of the other but $5.0 million during each fiscal year without the consent of any Lender. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other Personthan those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, amendincluding the proceeds of any sale, modify or supplement this Agreement and any other Loan Document all of which shall continue to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything constitute part of the Collateral to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require extent required under the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote provisions of the Lenders hereunder requiring any consent of less than all affected Lenders)Loan Documents.
Appears in 1 contract
Samples: Forbearance Agreement and Third Amendment to Credit Agreement (Hawker Beechcraft Notes Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder 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 right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on the Borrower or Holdings in any case shall entitle the Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)any Incremental Facilities Amendment or Section 2.21 with respect to any Refinancing Amendment and Section 2.24 with respect to any Permitted Amendment, neither this Agreement nor Agreement, any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower, the Administrative Agent (to the extent that such waiver, amendment or modification does not affect the rights, duties, privileges or obligations of the Administrative Agent under this Agreement, the Administrative Agent shall execute such waiver, amendment or other modification to the extent approved by the Required Lenders) and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender), (ii) reduce the principal amount of any Loan or L/C LC Disbursement (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a reduction or forgiveness in principal) or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; thereby (it being understood that any change to the definition of First Lien Leverage Ratio or in the component definitions thereof shall not constitute a reduction of interest or fees), provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay default interest at the rate set forth thereinpursuant to Section 2.13(c), (iii) postpone the scheduled maturity of any Loan (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension of any maturity date), or the date of any scheduled amortization payment of the principal amount of any Term Loan under Section 2.10 or L/C the applicable Refinancing Amendment, or the reimbursement date with respect to any LC Disbursement, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02without the written consent of each Lender directly and adversely affected thereby); provided that any such change which is in favor of a Class of Lenders holding Loans maturing after the maturity of other Classes of Lenders (and only takes effect after the maturity of such other Classes of Loans or Commitments) will require the written consent of the Required Lenders with respect to each Class directly and adversely affected thereby, (v) change the percentage set forth in the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, as the case may be), (vi) release all or substantially all the value of the Guarantors from their obligations Guarantees under the U.S. Guarantee and Security Agreement and (except as expressly provided in the Foreign Guarantee and Security Agreement Loan Documents) without the written consent of each Lender (other than a Defaulting Lender, ) or (vii) release all or substantially all of the Collateral from the Lien Liens of the Collateral Security Documents, without the written consent of each Lender or (viii) contractually subordinate other than a Defaulting Lender), except as expressly provided in the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each LenderLoan Documents; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be be, and (2B) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by Holdings, the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency and (C) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by Holdings, Intermediate Parent, the Borrower and the requisite percentage in interest of the affected Class of Lenders stating that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, (a) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrower (i) 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 and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion and (b) guarantees, collateral security documents and related documents in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement and the Borrowers mayother Loan Documents, amended and waived with the consent of the other but Administrative Agent at the request of the Borrower without the need to obtain the consent of any other PersonLender if such amendment or waiver is delivered in order (i) to comply with local law or advice of local counsel, amend(ii) to cure ambiguities or defects or (iii) to cause such guarantee, modify collateral security document or supplement other document to be consistent with this Agreement and any the other Loan Document Documents.
(c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders to cure such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any ambiguitysuch Lender whose consent is not obtained as described in paragraph (b) of this Section being referred to as a “Non-Consenting Lender”), typographical then, so long as the Lender that is acting as Administrative Agent is not a Non-Consenting Lender, the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or technical errorCommitments, defect as applicable (and, if a Revolving Commitment is being assigned, each Principal Issuing Bank and Swingline Lender), which consent shall not unreasonably be withheld, (b) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding par principal amount of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including pursuant to Section 2.11(a)(i)) from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or inconsistency. the Borrower (in the case of all other amounts) and (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b).
(d) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary hereincontrary, no the Revolving Commitments, Term Loans and Revolving Exposure of any Lender that is at the time a Defaulting Lender shall not have any right voting or approval rights under the Loan Documents and shall be excluded in determining whether all Lenders (or all Lenders of a Class), all affected Lenders (or all affected Lenders of a Class), a Majority in Interest of Lenders of any Class or the Required Lenders have taken or may take any action hereunder (including any consent to approve any amendment or disapprove waiver pursuant to this Section 9.02); provided that (x) the Commitment of any amendmentDefaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, waiver amendment or modification requiring the consent hereunder which does not of all Lenders or each affected Lender that affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
(e) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary, each affected Affiliated Lender (it being understood that other than an Affiliated Debt Fund) hereby agrees that, if a proceeding under the Bankruptcy Code or any Commitments other Federal, state or foreign bankruptcy, insolvency, receivership or similar law shall be commenced by or against the Borrower or any other Loan Party at a time when such Lender is an Affiliated Lender, such Affiliated Lender irrevocably authorizes and empowers the Administrative Agent to vote on behalf of such Affiliated Lender with respect to the Loans held or deemed by such Affiliated Lender in any manner in the Administrative Agent’s sole discretion, unless the Administrative Agent instructs such Affiliated Lender to vote, in which case such Affiliated Lender shall vote with respect to the Loans held by any Defaulting it as the Administrative Agent directs; provided that such Affiliated Lender shall be excluded for a entitled to vote in accordance with its sole discretion (and not in accordance with the direction of the Administrative Agent) in connection with any plan of reorganization to the extent any such plan of reorganization proposes to treat any Secured Obligations held by such Affiliated Lender in a manner that is less favorable in any material respect to such Affiliated Lender than the proposed treatment of similar Secured Obligations held by Lenders hereunder requiring that are not Affiliates of the Borrower.
(f) Notwithstanding the foregoing, only the Required Revolving Lenders shall have the ability to waive, amend, supplement or modify the Financial Performance Covenant (or any consent of less than all affected Lenderscomponent definition thereof as it relates thereto).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except Subject to Section 2.14(b) and Section 9.02(c) through 9.02(f) below and except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.21 with respect to such an Incremental Term Loan Document)Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement (including any Incremental Term Loan Amendment) shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (including any such Lender that is a Defaulting Lender) (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default, Event of Default or mandatory prepayment shall not constitute an increase of any Commitment of any LenderCommitment), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; provided thereby (including any such Lender that is a Defaulting Lender), provided, however, that only the consent of the Required Lenders shall be necessary to amend the provisions with respect to the application or amount of the default rate described in Section 2.12(c2.13(c) or to waive any obligation of the Borrowers any Borrower to pay interest or fees at such default rate and with respect to amendments to any financial covenant ratios or related definitions, the rate set forth thereinimpact of which may reduce interest, (iii) postpone the scheduled date of payment or amortization of the principal amount of any Loan or L/C LC Disbursement, or any date for payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such paymentpayment (in each case excluding, for the avoidance of doubt, mandatory prepayments under Section 2.11), or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected therebythereby (including any such Lender that is a Defaulting Lender), (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) release the Borrower from its Obligations without the written consent of each Lender, (vi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or or, except as provided in the definition of “Alternative Currencies” or following clause (viii), any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender (it being understood that, solely with the consent of the parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of the Required Lenders, the Required Revolving Lenders and the Required Term Lenders, as applicable, on substantially the same basis as the Commitments and the Term Loans are included on the Effective Date) (provided that with the consent of the Administrative Agent, the provisions of this Section and the definition of the term “Required Lenders” may be amended to include references to any new class of loans created under this Agreement (or to lenders extending such loans) on substantially the same basis as the corresponding references relating to the existing classes of Loans or Lenders), (vii) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (viii) change the definition of “Required Revolving Lenders” or “Required Term Lenders”, without the written consent of each Revolving Lender or each Term Lender, respectively (viother than any Defaulting Lender), (ix) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class differently than Lenders holding Loans of any other Class, without the written consent of the Required Revolving Lenders and the Required Term Lenders, as the case may be, of the Class of Loans adversely affected thereby, (x) release all or substantially all of the Loan Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Loan Guaranty, without the written consent of each Lender (other than any Defaulting Lender) (except as otherwise expressly provided for herein), (viixi) except as provided in paragraph (d) of this Section, release all or substantially all of the Collateral from the Lien of the Collateral Documents(except as otherwise expressly provided for herein), without the written consent of each Lender (other than any Defaulting Lender), or (viiixii) contractually subordinate change the payment definition of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt “Alternative Currency” without the written consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, provided further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Agent or the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Bank, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments change to Section 2.20 shall require the consent of the Administrative Agent and the Issuing Bank); provided further, that no such agreement shall amend or Loans held modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Borrower and the Issuing Bank regarding the Issuing Bank’s Letter of Credit Commitment or the respective rights and obligations between the Borrower and the Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Borrower, the Administrative Agent and the Issuing Bank, respectively. The Administrative Agent may also amend Schedule 2.01A or 2.01B to reflect assignments entered into pursuant to Section 9.04.
(c) Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written consent of the Required Lenders, the Administrative Agent and the Borrower (1) to add one or more additional revolving credit or term loan facilities to this Agreement and to permit the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed appropriate by the Administrative Agent, the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder.
(d) If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender (or each affected Lender) and that has been approved by the Required Lenders, the Required Term Lenders, or the Required Revolving Lenders, the Borrower may replace such Non-Consenting Lender in accordance with Section 2.19; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).
(e) If the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.
(f) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to or held by the Administrative Agent upon any Defaulting Lender shall Collateral (i) upon the termination of all the Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than (A) contingent obligations and (B) Secured Swap Obligations and Secured Banking Services Obligations as to which arrangements satisfactory to the applicable Swap Provider or Banking Services Provider have been made), and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the Issuing Bank have been made), (ii) constituting property being sold or disposed of if the Borrower certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property leased to the Borrower or any Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII, (v) as otherwise permitted by, but only in accordance with, the terms of any Loan Document, or (vi) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be excluded for a vote approved by all of the Lenders hereunder requiring hereunder. Upon request by the Administrative Agent at any consent time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of less Collateral pursuant hereto. Any such release shall not in any manner discharge, affect, or impair the Secured Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all affected Lenders)interests retained by the Domestic Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
Appears in 1 contract
Samples: Credit Agreement (Virtusa Corp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company anythe Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such an Incremental Term Loan Document)Amendment and subject to clauses (c) and (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the percentage with respect to any Class of Lenders in the definition of the term “Alternative CurrenciesMajority in Interest” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments, the Revolving Loans and the Term Loans are included on the Effective Date), (vi) release the Company or all or substantially all of the Subsidiary Guarantors from their from, its obligations under Article X or the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each LenderSubsidiary Guaranty, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentsas applicable, without the written consent of each Lender or (viiivii) contractually subordinate the payment of the Obligations to waive any other Indebtedness or subordinate the Liens on the ABL Priority Collateral condition set forth in favor of the Administrative Agent to Liens securing other Funded Debt Section 4.02 without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the written consent of the Supermajority Lenders, (x) amend the definition Majority in Interest of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any Lenders of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) applicable Class (it being understood and agreed that the establishmentany amendment or waiver of, modification or elimination any consent with respect to, any provision of Reservesthis Agreement (other than any waiver expressly relating to Section 4.02) or any other Loan Document, including any amendment of any affirmative or negative covenant set forth herein or in each case by the Administrative Agent in accordance with the terms hereofany other Loan Document or any waiver of a Default or an Event of Default, will shall not be deemed to require be a Supermajority Lender consentwaiver of a condition set forth in Section 4.02 for purposes of this Section 9.02); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.25 shall require the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender); provided further, that no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Company and any Issuing Bank regarding such Issuing Bank’s Letter of Credit Commitment or the respective rights and obligations between the Company and such Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing Bank, respectively. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (2i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other modification.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers Borrower to each relevant Loan Document (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit 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 Revolving Loans, the initial Term Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein.
(e) If, no Defaulting Lender shall have in connection with any right to approve or disapprove any proposed amendment, waiver or consent hereunder which does not require requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (it being understood that any Commitments i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans held or deemed held by any Defaulting and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) such Non-Consenting Lender shall be excluded for a vote have received in same day funds on the day of such replacement an amount equal to (1) the Lenders outstanding principal amount of its Loans and participations in LC Disbursements and all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by suchthe Borrower hereunder requiring any consent to and including the date of less termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than all affected Lenders)sold to the replacement Lender.
Appears in 1 contract
Samples: Credit Agreement (Fuller H B Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
. (b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.22 and Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise expressly permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (viii) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, or (viix) release all or substantially all amend the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement “Alternative Currency” without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).114
Appears in 1 contract
Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time..
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.22 and Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise expressly permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (viii) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, or (viix) release all or substantially all amend the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, “Alternative Currency” without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lenderdirectly affected thereby; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04
(c) The Lenders hereby irrevocably authorize the Administrative Agent to, and the Administrative Agent shall release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon Payment in Full, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary (other than a Disposition to Holdings or any other Restricted Subsidiary), the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $5 million during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. Notwithstanding anything herein to the contrary, a Subsidiary that is a Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Collateral Documents in Collateral owned by such Subsidiary shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. Upon any sale or other transfer by any Loan Party (other than to the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 9.02, the security interests in such Collateral created by the Collateral Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have A copy of any right to approve or disapprove any such amendment, waiver modification or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender supplement shall be excluded for a vote promptly delivered by the Administrative Agent to each Lender.
(f) In addition, notwithstanding the foregoing, this Agreement, including this Section 9.02, and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.22 to add any Incremental Term Loan Facility to this Agreement and (a) 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 (including the rights of the Incremental Term Loan Lenders hereunder requiring to share ratably in prepayments pursuant to Section 2.11), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any consent determination of less than all affected Lendersthe Required Lenders and (c) to amend other provisions of the Loan Documents so that the Incremental Term Loan Facility is appropriately incorporated (including this Section 9.02)..
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Global Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Global Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph PARAGRAPH (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Global Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other of the Combined Loan Document Documents nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Global Administrative Agent with the consent of the Required Lenders, or, in the case of any other Combined Loan Document, pursuant to an agreement or agreements in writing entered into by the relevant Loan Parties thereto and the Required Lenders or by the relevant Loan Parties thereto and the Global Administrative Agent with the consent of the Required Lenders; providedPROVIDED that the same waiver, amendment or modification is requested by Borrower in connection with each of the Combined Credit Agreements; and PROVIDED FURTHER that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(bSECTION 2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02SECTION 10.2, the definition of “Required Lenders” SECTION 2.7, 2.10 or the definition of “Alternative Currencies” "Required Lenders" or "Borrowing Base Required Lenders" or any other provision hereof of any Combined Loan Document specifying the number or percentage of Lenders, Canadian Lenders or Combined Lenders required to determine or redetermine the Global Borrowing Base, the Allocated U.S. Borrowing Base or the Allocated Canadian Borrowing Base or required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentsthereunder, without the written consent of each Lender Combined Lender, (vi) release any Loan Party from its Guaranty (except as expressly provided in such Guaranty), or (viii) contractually subordinate the payment limit its liability in respect of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt such Guaranty, without the written consent of each Combined Lender; provided, that no such changeor (vii) except as expressly provided herein, waiverin the Intercreditor Agreement or in the Security Documents (as defined herein and in the Canadian Credit Agreement), discharge release all or termination shallany part of the Collateral from the Liens of the Security Documents (as defined herein and in the Canadian Credit Agreement), without the written consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood Combined Lender; PROVIDED FURTHER that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, waive, modify or otherwise affect the rights or duties of any Agent (as defined herein and in the Administrative Agent, Canadian Credit Agreement) or any Issuing Bank or (as defined herein and in the Swingline Lender hereunder Canadian Credit Agreement) without the prior written consent of such Agent (as defined herein and in the Administrative Agent, the relevant Canadian Credit Agreement) or any Issuing Bank or (as defined herein and in the Swingline LenderCanadian Credit Agreement), as the case may be and (2) be; PROVIDED FURTHER that the Global Administrative Agent shall have the right to execute and the Borrowers may, with the consent deliver any release of the Lien (or other but similar instrument) without the consent of any other Person, amend, modify Lender to the extent such release is required to permit Borrower or supplement a Restricted Subsidiary to consummate a transaction permitted by this Agreement and any or the other Combined Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)Documents.
Appears in 1 contract
Samples: Credit Agreement (Forest Oil Corp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except Subject to Section 2.14(b) and except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such an Incremental Term Loan Document)Amendment, except as provided in Section 2.23 with respect to an Extension and subject to clauses (c) and (f) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Revolving Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided thereby (except that only the consent any amendment or modification of the Required Lenders financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at not constitute a reduction in the rate set forth thereinof interest or fees for purposes of this clause (ii)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ae) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Revolving Commitments and the Revolving Loans are included on the Effective Date), (vi) except as provided in the Loan Documents, release all or substantially all of the Subsidiary Guarantors from their obligations under the Guaranty Agreement, in each case, without the written consent of each Lender, or (vivii) except as provided in clause (d) of this Section or in any Collateral Document, release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Collateral, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.22 shall require the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender); provided further that no such agreement shall amend or modify the provisions of Section 2.07 or any letter of credit application and any bilateral agreement between the Borrower and any Issuing Bank regarding such Issuing Bank’s Letter of Credit Commitment or the respective rights and obligations between the Borrower and such Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing Bank, respectively. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clauses (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other modification.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrower (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit 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 Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (2y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of all the Revolving Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to the Administrative Agent, (ii) constituting property being sold or disposed of if Holdings certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property leased to Holdings or any Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Borrowers Lenders pursuant to Article VII. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Administrative Agent, at its option and in its discretion, (i) to subordinate any Lien on any assets granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(h) or (ii) in the event that Holdings shall have advised the Administrative Agent that, notwithstanding the use by Holdings and the Borrower of commercially reasonable efforts to obtain the consent of such holder (but without the requirement to pay any sums to obtain such consent) to permit the Administrative Agent to retain its liens (on a subordinated basis as contemplated by clause (i) above), the holder of such other Indebtedness requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by the Administrative Agent under any Loan Document be released, to release the Administrative Agent’s Liens on such assets.
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace, or prepay the Loans (and terminate the Revolving Commitments) of, a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently therewith, (i) if a replacement, another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower or such successor Lender, as applicable, shall pay to such Non-Consenting Lender in same day funds on the day of such replacement or prepayment (1) the outstanding principal amount of its Loans and participations in LC Disbursements and all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Section 2.15 and Section 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender. If Borrower has elected to prepay the Loans held by such Non-Consenting Lender, after the payment by Borrower as provided in clause (ii), the Revolving Commitments of such Non-Consenting Lender shall terminate.
(f) Notwithstanding anything to the contrary herein the Administrative Agent may, with the written consent of Holdings and the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the execution and delivery of this Agreement, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(ba) Except as otherwise set forth in this Agreement or any other Loan Document (with respect Subject to such Loan DocumentSections 2.08(e), 2.14 and 10.02(c), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C any LC Disbursement or reduce the rate of interest or premium thereonthereon (other than as a result of any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.13(d)), or reduce any fees payable hereunder, without the written consent of each Lender directly adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C any LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, in each case, without the written consent of each Lender directly adversely affected thereby, (iv) change Section 2.17(b2.08(c) or (c), Section 9.08(a2.18(b) or the CAM Exchange 2.18(c) or Section 7.02 in a manner that would alter the pro rata sharing of Commitment reductions or payments required thereby or change thereby, as the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementcase may be, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (vi) waive or amend any condition set forth in Section 4.03 with respect to any Revolving Loan or Letter of Credit without the written consent of the Required Revolving Lenders, (vii) waive any condition precedent required under Section 4.01 without the written consent of each Arranger, (viii) change the percentage set forth in the definition of the term “Required Revolving Lenders” without the written consent of each Revolving Lender or (ix) release all or substantially all of the Guarantors from their obligations under value of the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Guarantors, taken as a whole, without the written consent of each Lender, except as expressly permitted hereunder (vii) in which case such release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would may be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case made by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consentacting alone); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline LenderBank, as the case may be be. Notwithstanding anything else in this Section to the contrary (A) any amendment of the definition of the term “Applicable Rate” pursuant to the penultimate sentence of such definition shall require only the written consent of the Borrower and the Required Lenders and (2B) no consent with respect to any waiver, amendment or modification of this Agreement or any other Loan Document shall be required of any Defaulting Lender, except with respect to any waiver, amendment or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be adversely affected by such amendment, waiver or other modification.
(b) If the Administrative Agent and the Borrowers mayBorrower acting together identify any ambiguity, with the consent omission, mistake, typographical error or other defect in any provision of the other but without the consent of this Agreement or any other PersonLoan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement this Agreement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other Loan Document party to cure any ambiguitythis Agreement, typographical or technical errorso long as, defect or inconsistency. Notwithstanding anything in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the contrary hereinLenders, no Defaulting Lender shall have any right a written notice from the Required Lenders stating that the Required Lenders object to approve or disapprove any such amendment, waiver modification or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)supplement.
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company a Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers a Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, Lender or (vii) release re-lease all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Company may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans (as determined by the applicable Borrower in good faith), except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
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Waivers; Amendments. (a) No failure or delay by the Administrative AgentMortgagee, any Issuing Bank L/C Issuer, any Lender or any Lender other Secured Party in exercising any right right, power or power remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right right, power or powerremedy, or any abandonment or discontinuance of steps to enforce such a right right, power or powerremedy, preclude any other or further exercise thereof or the exercise of any other right right, power or powerremedy. The rights rights, powers and remedies of the Administrative AgentMortgagee, any L/C Issuer, the Issuing Banks and the Lenders or any other Secured Party hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights rights, powers or remedies that they would otherwise have. No waiver of any provision of this Agreement Mortgage or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.028.05(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan Loan, the increase of any Other First Lien Obligations or the issuance of a Letter of Credit (as defined in the Credit Agreement) shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative AgentMortgagee, any Lender Lender, any L/C Issuer or any Issuing Bank other Secured Party may have had notice or knowledge of such Default or Event of Default at the time. No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth in Neither this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document Mortgage nor any provision hereof or thereof of any other Security Document may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Mortgagee and the Required Lenders Loan Party or by HoldingsLoan Parties with respect to which such waiver, the Borrowers and the Administrative Agent amendment or modification is to apply, subject to any consent required in accordance with the consent Section 9.08 of the Required Lenders; providedCredit Agreement, that no such agreement shall (iSection 9.02(a) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary Indenture and any equivalent provision in each applicable Other First Lien Agreement and, by each other Authorized Representative to amend Section 2.12(cthe extent required by (and in accordance with) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security applicable Other First Lien Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (includingor, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, as otherwise provided in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties Section 2.04 of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent First Lien Intercreditor Agreement. Mortgagee may conclusively rely on a certificate of an officer of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, Borrower as the case may be and to whether any amendment contemplated by this Section 8.05(b) is permitted.
(2c) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary contained herein, no Defaulting Lender shall have any right to approve Mortgagee may grant extensions of time or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote waivers of the Lenders hereunder requiring requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to the Mortgaged Property where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Mortgage or any consent of less than all affected Lenders)other Loan Documents.
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. applicable Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreements, without the written consent of each Lender, (vii) after the Closing Date, waive or modify any condition precedent set forth in Section 4.02 with respect to Borrowings of U.S. Revolving Loans or Alternative Currency Revolving Loans, without the written consent of the Required U.S. Revolving Lenders or the Required Alternative Currency Revolving Lenders, as applicable, or (viii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority provided, that during a Collateral in favor of Suspension Period, the Administrative Agent to Liens securing other Funded Debt may release all or substantially all of the Collateral without the consent of each any Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers Borrower may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche denominated in Dollars (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans (as determined by the Borrower in good faith), except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
Appears in 1 contract
Samples: Credit Agreement (Mylan Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document the first sentence of Section 2.09(f) (with respect to such Loan Document)any commitment increase) or Section 6.03(c) with respect to changes in fiscal year, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing 119 entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall shall:
(i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby(including any such Lender that is a Defaulting Lender); provided that, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, ;
(ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that (x) any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii) and (y) only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) reduce or to waive any obligation of the Borrowers to pay interest or any other amount at the applicable default rate set forth therein, in Section 2.13(c) or to amend Section 2.13(c);
(iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, thereby (other than with respect to the matters set forth in clauses (ii)(x) and (ii)(y) above);
(iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (other than any Defaulting Lender);
(v) change the definition of any Borrowing Base (or any defined terms used therein) in a manner that makes more credit available, increase the advance rates set forth in the definition of Borrowing Base or add new categories of eligible assets, in each case, without the written consent of each Lender (other than any Defaulting Lender);
(vi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, );
(vii) release all or substantially all of the Collateral from the Lien value of the Collateral Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents, including with respect to a sale, disposition or dissolution of a Loan Guarantor permitted herein), without the written consent of each Lender or (other than any Defaulting Lender); or
(viii) contractually subordinate the payment except as provided in clause (d) of this Section or in any Collateral Document, release all or substantially all of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt Collateral, without the written consent of each Lender (other than any Defaulting Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender) and (2B) no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Borrower Representative and the Issuing Bank regarding the Issuing Bank’s Issuing Bank Sublimit or the respective rights and obligations between any Borrower and the Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and the Issuing Bank, respectively. The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and each Borrower (x) to add one or more credit facilities to this Agreement and to permit 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 Revolving Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) The Lenders and the Issuing Bank hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon satisfaction of the Final Release Conditions, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interests of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, (iv) constituting Excluded Assets or (v) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided that, the Administrative Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $7,500,000 during any calendar year without the prior written authorization of the Required Lenders(it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrowers as to the value of any Collateral to be so released, without further inquiry). Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Administrative Agent, at its option and in its discretion, (i) to subordinate any Lien on any assets granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(e) or (ii) in the event that the Company shall have advised the Administrative Agent that, notwithstanding the use by the Company of commercially reasonable efforts to obtain the consent of such holder (but without the requirement to pay any sums to obtain such consent) to permit the Administrative Agent to retain its liens (on a subordinated basis as contemplated by clause (i) above), the holder of such other Indebtedness requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by the Administrative Agent under any Loan Document be released, to release the Administrative Agent’s Liens on such assets. Any such release shall not in any manner discharge, affect, or impair the Obligations or any 121 Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent.
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) such Non-Consenting Lender shall have received in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(f) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrowers only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents (i) to correct, amend, resolve or cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything inconsistency or correct any typographical error or other manifest error in any Loan Document, (ii) to comply with local law or advice of local counsel in any jurisdiction the laws of which govern any Collateral Document or that are relevant to the contrary hereincreation, no Defaulting Lender shall have perfection, protection and/or priority of any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote Lien in favor of the Lenders hereunder requiring Administrative Agent, (iii) to effect the granting, perfection, protection, expansion or enhancement of any consent security interest in any Collateral or additional property to become Collateral for the benefit of less than all affected the Secured Parties, (iv) to make administrative or operational changes not adverse to any Lender or (v) to add a guarantor or collateral or otherwise enhance the rights and benefits of the Lenders).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, PROVIDED that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).,
Appears in 1 contract
Waivers; Amendments. (a) No waiver of any Default or Event of Default shall be a waiver of any other Default or Event of Default. No failure or delay by the Administrative Agent, any Issuing Bank or any Lender JPMCB in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders JPMCB hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they it would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings the Borrower, the Parent Company or the Company any other Obligor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Person shall entitle any Person to any or notice or demand in similar or other circumstances. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank JPMCB may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in Neither this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected Person to be bound thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph PARAGRAPH (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, or any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, PROVIDED that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) extend or increase the Commitment of any Lender or any Issuing Bank without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.01 or Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, but that any waiver of any condition set forth in Section 4.02 following the Closing Date shall require the consent of the Required LendersFacility Lenders with respect to the Facility under which an extension of credit is to be made, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to (x) amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth therein, (iii) or (y) modify or replace Schedule 2.13, (iii) subject to Section 2.20, postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory repayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange provisions of Article VII, in a manner that would alter each case, with respect to the pro rata sharing application of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementany distribution waterfall set forth therein, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).written
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank Purchaser Representative or any Lender Purchaser in exercising any right or power hereunder or under any other Loan Note Document shall operate as a waiver thereofthereof except as provided herein or in any Note Document, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Purchaser Representative and the Lenders Purchasers hereunder and under the any other Loan Documents Note Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Note Document or consent to any departure by Holdings or the Company any party hereto therefrom shall in any event be effective unless the same shall be is permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given. Without limiting the generality of the foregoing, to the making extent permitted by applicable Requirements of a Loan or issuance Law, the purchase of a Letter of Credit any Note shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender Purchaser Representative or any Issuing Bank Purchaser may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document Subject to Sections 9.02(b) through (with respect d) below and to such Loan DocumentSection 9.05(f), neither this Agreement nor any other Loan Note Document nor any provision hereof or thereof may be waived, amended or modified modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Issuer and the Required Lenders Purchasers (or by Holdings, the Borrowers and the Administrative Agent Purchaser Representative with the consent of the Required LendersPurchasers) or (ii) in the case of any other Note Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Note Document), pursuant to an agreement or agreements in writing entered into by the Required Purchasers and each Note Party that is party thereto; providedprovided that, that no such agreement notwithstanding the foregoing:
(A) the consent of each Purchaser directly and adversely affected thereby (but not the consent of the Required Purchasers) shall be required for any waiver, amendment or modification that:
(i1) increase increases the Commitment of such Purchaser (other than with respect to any Lender without the written consent Additional Note pursuant to Section 2.22 in respect of each Lender directly affected thereby, which such Purchaser has agreed to be an Additional Purchaser); it being understood that a no amendment, modification or waiver of of, or consent to departure from, any condition precedent set forth in Section 4.02 or the waiver precedent, representation, warranty, covenant, Default, Event of any Default or mandatory prepayment reduction of the Commitments shall not constitute an increase of any Commitment of any Lender, such Purchaser;
(ii2) reduce reduces the principal amount of any Loan Note owed to such Purchaser or L/C Disbursement any amount due to such Purchaser on the Maturity Date;
(3) (x) extends the scheduled final maturity of any Note held by such Purchaser or reduce (y) postpones any Interest Payment Date with respect to any Note held by such Purchaser hereunder (in each case, other than any extension for administrative reasons agreed by the Purchaser Representative);
(4) reduces the rate of interest (other than to waive any Default or premium thereonEvent of Default or any obligation of the Issuer to pay interest to such Purchaser at the default rate of interest under Section 2.15(d), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that which shall only require the consent of the Required Lenders shall be necessary to amend Section 2.12(cPurchasers) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan fee or L/C Disbursementpremium owed to such Purchaser; it being understood that no change in the definition of “Consolidated Adjusted EBITDA” or any other financial test, or in the calculation of any other interest, fee or premium due hereunder (including any component definition thereof) shall constitute a reduction in any rate of interest thereonor fee hereunder;
(5) extends the expiry date of such Purchaser’s Commitment; it being understood that no amendment, modification or waiver of, or consent to departure from, any fees payable hereundercondition precedent, representation, warranty, covenant, Default, Event of Default or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration mandatory reduction of any CommitmentCommitment shall constitute an extension of any Commitment of any Purchaser; or
(6) waives, without amends or modifies the written consent provisions of each Lender directly affected thereby, (ivI) change Section 2.17(bSections 2.21(a) or (c), Section 9.08(a) or the CAM Exchange of this Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby (except in connection with any transaction permitted under Sections 2.22 and/or 9.05(g) or change as otherwise provided in this Section 9.02) or (II) Section 2.21(b);
(7) waives, amends or modifies the order provisions of application specified in Section 2.22(dArticle 10 that adversely affects the Conversion Rights of any Notes (other than any Second Amendment Delayed Draw Notes) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, hereunder;
(vB) no such agreement shall:
(1) change (x) any of the provisions of this Section 9.02, 9.02(a) or Section 9.02(b) or the definition of “Required Lenders” or the definition of “Alternative Currencies” or Purchasers”, in each case to reduce any other provision hereof specifying the number or voting percentage of Lenders required to waive, amend or modify any rights hereunder right thereunder or make any determination or grant any consent hereunder thereunder, without the prior written consent of each LenderPurchaser, (viy) release all or substantially all the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement “Required Delayed Draw Purchasers” without the written consent of each Lender, Delayed Draw Purchaser (viiit being understood that neither the consent of the Required Purchasers nor the consent of any other Purchaser shall be required in connection with any change to the definition of “Required Delayed Draw Purchasers”) or (z) the definition of “Required Additional Purchasers” without the consent of each Additional Purchaser (it being understood that neither the consent of the Required Purchasers nor the consent of any other Purchaser shall be required in connection with any change to the definition of “Required Additional Purchasers”);
(2) (A) release all or substantially all of the Collateral from the Lien of granted pursuant to the Collateral Note Documents (except as otherwise permitted herein or in the other Note Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender Purchaser or (viiiB) contractually subordinate the Lien on any of the Collateral securing the Secured Obligations or subordinate the payment priority of any of the Obligations to any other Indebtedness or subordinate for borrowed money (other than in connection with (I) any Acceptable Debtor-In-Possession Financing and/or (II) any other financing with respect to which each Purchaser has been offered the Liens on the ABL Priority Collateral in favor of the Administrative Agent opportunity to Liens securing other Funded Debt provide such financing without the prior written consent of each LenderPurchaser, in the case of this clause (II), to the extent such Purchaser is offered a reasonable, bona fide opportunity to participate on a pro rata basis in any such Indebtedness on substantially the same terms as all other Purchasers, which offer shall remain open to such Purchaser for a period of not less than five Business Days; provided, that no if any such changePurchaser does not accept such offer to provide its pro rata share of such Indebtedness in writing within five Business Days of receipt of such offer, waiversuch Purchaser shall be deemed to have declined such offer); provided that the amendment of Section 6.01 and/or Section 6.02 to permit the incurrence of additional obligations that are secured by the Collateral on a pari passu basis with the “Secured Obligations” (or equivalent term) under the First Lien Facility shall not be subject to this clause (B)(2)(B); or
(3) release all or substantially all of the value of the Guarantees under the Note Guaranty (except as otherwise permitted herein or in the other Note Documents, discharge or termination shallincluding pursuant to Section 9.22 hereof), without the prior written consent of each Purchaser;
(C) solely with the consent of the Required Additional Purchasers with respect to any Additional Note Commitment (but without the consent of the Supermajority LendersRequired Purchasers or any other Purchaser), any such agreement may waive, amend or modify any condition precedent set forth in Section 4.03 (xother than Section 4.03(d)) amend as it pertains to any Additional Notes Issuance in respect of any Additional Note Commitment;
(D) solely with the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any consent of the following definitionsRequired Delayed Draw Purchasers (but without the consent of the Required Purchasers or any other Purchaser), any such agreement may waive, amend or modify any condition precedent set forth in each case Section 4.02 or Section 4.03 (other than Section 4.03(d)) as it pertains to any Issuance of Delayed Draw Notes; and
(E) solely with the effect consent of which would be the Required Second Amendment Delayed Draw Purchasers (but without the consent of the Required Purchasers or any other Purchaser), any such agreement may waive, amend or modify any condition precedent set forth in Section 4.03 (other than Section 4.03(d)) as it pertains to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory any Issuance of Second Amendment Delayed Draw Notes); and
(including, in each case, the defined terms used thereinF) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1E) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender Purchaser Representative hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and Purchaser Representative.
(2c) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. [Reserved].
(d) Notwithstanding anything to the contrary hereincontained in this Section 9.02 or any other provision of this Agreement or any provision of any other Note Document:
(i) the Issuer and the Purchaser Representative may, without the input or consent of any Purchaser, amend, supplement and/or waive any provision of this Agreement and/or any guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in connection with this Agreement to (A) comply with any Requirement of Law or the advice of counsel or (B) cause any such guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant other Note Documents,
(ii) [reserved],
(iii) [reserved],
(iv) the Purchaser Representative and the Issuer may amend, restate, amend and restate or otherwise modify any Intercreditor Agreement and/or any other Additional Agreement as provided therein,
(v) the Purchaser Representative may amend Schedule 2.01 to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations pursuant to Section 2.11, issuances of First Amendment Notes pursuant to Section 2.02 and/or Second Amendment Delayed Draw Notes or Delayed Draw Notes pursuant to Section 2.03 and reductions or redemptions of any such First Amendment Notes, Second Amendment Delayed Draw Notes, Delayed Draw Notes or issuances of Additional Notes pursuant to Section 2.25 and reductions or redemptions of any such Additional Notes,
(vi) [reserved],
(vii) no Defaulting Lender Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does hereunder, except as permitted pursuant to Section 2.24(a) and except that the Commitment of any Defaulting Purchaser may not require be increased without the consent of each affected Lender such Defaulting Purchaser (it being understood that any Commitments Commitment or Loans Note held or deemed held by any Defaulting Lender Purchaser shall be excluded for a from any vote hereunder that requires the consent of any Purchaser, except as expressly provided in Section 2.24(a)),
(viii) this Agreement may be amended (or amended and restated) with the written consent of the Lenders hereunder requiring Required Purchasers and the Issuer (i) to add one or more additional debt facilities to this Agreement and to permit any extension of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other Note Documents and (ii) to include appropriately the Purchasers holding such debt facilities in any determination of the Purchasers on substantially the same basis as the Purchasers prior to such inclusion,
(ix) any amendment, waiver or modification of any term or provision that directly affects Purchasers under one or more Classes and does not directly and adversely affect Purchasers under one or more other Classes may be effected with the consent of less than all Purchasers owning 50% of the aggregate commitments or Notes of such directly affected LendersClass in lieu of the consent of the Required Purchasers, and
(x) [reserved];
(xi) this Agreement may be amended in the manner prescribed in Section 2.25; it being understood and agreed that any such amendment may provide that with respect to any Class of Notes and/or Commitments that is structured as a “delayed draw” or similar facility, (i) any condition precedent to the funding of any Notes thereunder and/or (ii) any Event of Default arising as a result of any inaccuracy of any representation and/or warranty (including any certification) made in connection with the satisfaction of any such condition precedent, in each case, may be waived, amended or modified solely with the consent of a majority of the holders of such Notes and/or Commitments (or such other percentage of such holders as may be required in the amendment implementing such Class of Notes and/or Commitments (and without the consent of the Required Purchasers or any other Purchasers),
(xii) [reserved],
(xiii) except as otherwise provided in Section 9.02(b)(C) above, the Required Purchasers, without the consent of any other Purchaser, may (A) rescind any acceleration of the Notes and/or any other Obligation pursuant to Article 7 hereof and/or (B) agree that the Purchaser Representative and the Purchasers will forbear from exercising any remedy provided under any Note Document with respect to any Event of Default, and
(xiv) [reserved].
Appears in 1 contract
Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.)
Waivers; Amendments. (a) No failure or delay by of the Administrative Agent, any Issuing Bank or any Lender Collateral Agent in exercising any power or right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Collateral Agent and the Lenders other Secured Parties hereunder and under the other Loan Secured Transaction Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Guaranty and Security Agreement or any other Secured Transaction Document or consent to any departure by Holdings or the Company any Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had No notice or knowledge of demand on any Grantor in any case shall entitle such Default at the time.
(b) Except as otherwise set forth in this Agreement or Grantor to any other Loan Document (with respect to such Loan Document), neither or further notice or demand in similar or other circumstances. Neither this Guaranty and Security Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended amended, supplemented or modified otherwise modified, or any departure therefrom consented to, except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the affirmative vote or consent of each of the Required LendersCompany and each Investor; provided, however, that following repayment of $1,500,000 of the principal amount (plus all accrued and unpaid Interest thereon) under the Convertible Note issued to Syntek Capital AG (“Syntek”), such amendment of or waiver under the Agreement shall no longer require the written consent of Syntek; provided, further, that no such amendment or waiver may materially and adversely affect the economic interest of Syntek in the Company without the prior written consent of Syntek; provided, further, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected therebywaive, it being understood that a waiver of any condition precedent set forth in Section 4.02 amend, supplement or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereonotherwise modify, or reduce any fees payable hereunderconsent to a departure to, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender Collateral Agent hereunder without the prior written consent of the Administrative Collateral Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.14, Section 2.23 (with respect to such Loan Documentany Commitment Increase) or Section 2.25), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Xxxxxx (including any such Lender directly affected thereby, that is a Defaulting Lender) (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default Default, Event of Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a reduction in principal) or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent thereby (other than as a result of the Required Lenders shall be necessary implementation of Section 2.14 or Section 2.25 or any waiver of any default interest applicable pursuant to amend Section 2.12(c2.13(c)) or (it being understood that any change to waive the definition of any obligation ratio used in the calculation of the Borrowers to pay interest at rate or fees therein or in the rate set forth thereincomponent definitions thereof shall not constitute a reduction of interest or fees), (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected therebythereby (it being understood that a waiver of any Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall not constitute a postponement of any maturity date), (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement change Section 2.20, without the written consent of each Lender (other than any Defaulting Lender), (vii) release all or substantially all of the Collateral from the Lien value of the Collateral DocumentsLoan Guaranties provided by the Loan Guarantors, without the written consent of each Lender or (other than any Defaulting Lender), (viii) contractually subordinate the payment except as provided in clause (d) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Obligations to any other Indebtedness Collateral, without the written consent of each Lender, or (ix) subordinate the Liens on all or substantially all the ABL Priority Collateral in favor value of the Administrative Agent Collateral to the Liens securing any other Funded Debt Indebtedness, or contractually subordinate with respect to payment any Obligations, without the written consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04.
(c) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of the all Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender; (ii) constituting property being sold or Disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or Disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or Disposed of constitutes 100% of the Equity Interest of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary; (iii) upon a Subsidiary becoming an Excluded Subsidiary as a result of a single transaction or series of related transactions not prohibited hereunder, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary; provided that, at the time such Subsidiary becomes an Excluded Subsidiary, (A) no Default or Event of Default shall have occurred and be outstanding, (B) after giving effect to such release and the consummation of the transaction that causes such Person to be an Excluded Subsidiary, the applicable Borrower is deemed to have made a new Investment in such Person for purposes of Section 6.04 (as if such Person were then newly acquired) and such Investment is permitted pursuant to Section 6.04 (other than Section 6.04(b)) at such time and (C) a Responsible Officer of the Borrower certifies to the Administrative Agent compliance with preceding clauses (A) and (B); provided, further, that no such release shall occur if such Subsidiary continues to be a guarantor in respect of any Indebtedness of any Loan Party in an aggregate principal amount at least equal to the Threshold Amount; (iv) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement; or (v) as required to effect any sale or other Disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. The Administrative Agent will release any Liens on Collateral as provided herein without the prior written authorization or notice of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non‑Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non‑Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non‑Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. .
(f) Notwithstanding anything to the contrary hereinherein the Administrative Agent and the Borrower may amend, no Defaulting Lender shall have modify or supplement this Agreement or any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent other Loan Documents as may be reasonably necessary or appropriate, in the opinion of less than all affected Lendersthe Administrative Agent, in connection with a Foreign Subsidiary becoming a Loan Guarantor (such amendments, modifications or supplements are referred to herein as “Voluntary Foreign Guarantor Amendments”).
Appears in 1 contract
Samples: Credit Agreement (Roku, Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrowers therefrom shall in any event be effective unless the same shall be permitted by paragraph subsection (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or in any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; providedprovided that, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth thereinDefault Rate, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.16(b), (c) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, or (vi) except in connection with a transaction permitted under this Agreement, release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreement, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent Agent, Holdings and the applicable Borrowers may, with the consent of each of the other foregoing but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency; provided, further, that any waiver, amendment or modification of this Agreement that (x) by its terms affects only the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) or (y) by its terms adversely affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by Holdings, the applicable Borrowers and the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 9.02 if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments Commitments, Loans or Loans the Revolving Credit Exposure held or deemed held by any Defaulting Lender shall be excluded for a vote in determining whether all Lenders, the Required Lenders, the Required Revolving Lenders or the Required Class Lenders or any other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to this Section 9.02); provided that (i) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the applicable Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders hereunder requiring holding such credit facilities in any determination of the Required Lenders. Notwithstanding the foregoing, guarantees entered into pursuant to the terms hereof, and related documents executed in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, modified, terminated or waived, and consent to any departure therefrom may be given, without the consent of less than all affected Lenders)any Lender if such amendment, modification, waiver or consent is given in order to (x) comply with local Law or (y) cause such guarantee or related document to be consistent with this Agreement and the other Loan Documents. The applicable Borrowers and the Administrative Agent may, without the consent of any other Lender, effect amendments to this Agreement and the other Loan Documents as may be necessary in the reasonable opinion of Holdings and the Administrative Agent to effect the provisions of Sections 2.18, 2.19 and 2.20.
Appears in 1 contract
Samples: Credit Agreement (Genpact LTD)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders (or, in respect of any waiver, amendment or modification of Section 6.09 only, the Required Revolving Lenders) or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders,” the definition of “Required Revolving Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) after the Closing Date, waive or modify any condition precedent set forth in Section 4.02 with respect to Borrowings of U.S. Revolving Loans or Alternative Currency Revolving Loans, without the written consent of the Required U.S. Revolving Lenders or the Required Alternative Currency Revolving Lenders, as applicable, (viii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viiiix) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche denominated in Dollars (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans (as determined by the Company in good faith), except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company therefrom Issuer herefrom shall in any event be effective unless the same shall be permitted by paragraph (bSection 6.02(b) of this Section 9.02and the S&P Rating Condition is satisfied with respect thereto, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit an Advance shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Servicer, the Trustee, the Class A-1A VFN Agent, any Lender Holder or any Issuing Bank other Noteholder may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Servicer on behalf of the Issuer and the Required Lenders or by Holdings, the Borrowers and the Administrative Class A-1A VFN Agent with the consent of Holders representing a majority of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth Class A-1A VFN Commitments except as otherwise expressly provided in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby6.02(b); provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative AgentTrustee or of the Servicer, any Issuing Bank as applicable, hereunder or the Swingline Lender hereunder in respect hereof without the prior written consent of the Administrative Agent, Trustee or of the relevant Issuing Bank or the Swingline LenderServicer, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document applicable. Prior to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove entering into any amendment, waiver or consent hereunder modification to this Agreement, the Rating Agency Condition shall be satisfied with respect thereto. Subject to the foregoing, the Servicer on behalf of the Issuer shall give written notice to each Rating Agency and the Trustee of any waiver, amendment or modification of any provision of this Agreement.
(c) No waiver, amendment or modification of the Indenture or any other agreement referred to herein or therein to which does not require the Issuer is a party (other than this Agreement) shall affect any of the rights or obligations under this Agreement of the parties hereto unless such waiver, amendment or modification is effected in accordance with the applicable provisions of this Agreement and the Indenture; provided that no such waiver, amendment or modification shall increase the Maximum Class A-1A VFN Commitment, or extend the term of any of the Class A-1A VFN Commitments, or extend the time or waive any requirement for the reduction or termination of any of the Class A-1A VFN Commitments, without the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring Holders.
(d) A failure or delay in exercising any consent right, power or privilege in respect of less than all affected Lenders)this Agreement shall not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege shall not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
Appears in 1 contract
Samples: Class a 1a VFN Purchase Agreement (Ares Capital Corp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Obligor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the execution and delivery of this Agreement or the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, Agent or any Lender or any Issuing Bank may have had notice or knowledge of such Default at the timetime (it being the express intent of the parties hereto that the Lenders be able to exercise all rights and remedies provided for in Article VII whether or not any Event of Default entitling the exercise of such rights and remedies was a condition precedent to the making of the Loans on the Funding Date).
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdingsthe Company, the Borrowers Borrower, the Administrative Agent and the Required Lenders or Lenders, provided that (i) any provision of this Agreement may be amended by Holdingsan agreement in writing entered into by the Company, the Borrowers Borrower and the Administrative Agent with to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the consent Lenders shall have received at least ten Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders; provided, Lenders stating that the Required Lenders object to such amendment and (ii) no such agreement shall (iA) increase the Commitment or the Backstop Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (iiB) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereonthereon (other than as a result of any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.10(c)), or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iiiC) postpone the scheduled maturity date of payment of the principal amount of any Loan or L/C DisbursementLoan, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment or any Backstop Commitment, without the written consent of each Lender directly affected thereby, (ivD) change Section 2.17(b2.15(b) or (c), Section 9.08(a2.15(c) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, and (vE) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of this Agreement specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify modify, extend or otherwise affect the rights or duties obligations of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder Agent without the prior written consent of the Administrative Agent. Notwithstanding the foregoing, (x) any amendment of the relevant Issuing Bank or definition of the Swingline Lender, as term “Applicable Rate” pursuant to the case may be and (2) last sentence of such definition shall require only the Administrative Agent and the Borrowers may, with the written consent of the other but without Company, the Borrower and the Required Lenders and (y) no consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document with respect to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require other modification of this Agreement shall be required of (1) any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (A), (B) or (C) of clause (ii) of the consent first proviso of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any this paragraph and then only in the event such Defaulting Lender shall be excluded for a vote affected by such amendment, waiver or other modification or (2) in the case of any amendment, waiver or other modification referred to in clause (ii) of the Lenders hereunder requiring first proviso of this paragraph, any consent Lender that receives payment in full of less than the principal of and interest accrued on each Loan made by, and all affected Lenders)other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement at the time such amendment, waiver or other modification becomes effective and whose Commitments (and, to the extent applicable, Backstop Commitments) terminate by the terms and upon the effectiveness of such amendment, waiver or other modification.
(c) The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, waivers or other modifications on behalf of such Lender. Any amendment, waiver or other modification effected in accordance with this Section 9.02 shall be binding upon each Person that is at the time thereof a Lender and each Person that subsequently becomes a Lender.
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings the Parent Guarantor or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Documentan Incremental Amendment or as provided in Section 2.14(b), Section 2.14(c) and Section 9.02(d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdingsby, in the case of this Agreement, the Borrowers Parent Guarantor, the Borrower and the Required Lenders (or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders) and, in the case of any other Loan Document, the applicable Loan Parties party to such Loan Document and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders); providedprovided that, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (but not the consent of the Required Lenders) (it being understood that a no amendment, modification, termination, waiver of or consent with respect to any condition precedent set forth in Section 4.02 precedent, covenant or the waiver of any Default or mandatory prepayment shall not constitute an increase of any in the Commitment of any Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest, fees or other amounts payable hereunder, without the written consent of each Lender directly and adversely affected thereby; provided that only thereby (but not the consent of the Required Lenders shall be necessary to amend Section 2.12(cLenders) (except that (A) any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) or to waive any obligation (B) the waiver or reduction of the Borrowers Borrower to pay interest or fees at the rate applicable Default Rate set forth thereinin Section 2.13(f) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected therebythereby (but not the consent of the Required Lenders) (other than any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.11 or the waiver or reduction of the Borrower to pay interest or fees at the applicable Default Rate set forth in Section 2.13(f), in each case which shall only require the approval of the Required Lenders), (iv) change Section 2.17(b2.09(c) or 2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the ratable reduction of Commitments or the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change the payment waterfall provisions of Section 2.21(b) or 7.03 without the written consent of each Lender, (vi) waive any condition set forth in Section 4.03 in respect of the making of a Revolving Loan without the written consent of the Required Revolving Lenders (provided further that, notwithstanding anything to the contrary herein, any waiver of the conditions set forth in Section 4.03 in respect of the making of Revolving Loans shall only require the consent of the Required Revolving Lenders), (vii) waive any condition set forth in Section 4.02 without the written consent of each Lender, (viii) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of ”, “Alternative CurrenciesRequired Revolving Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments and the Loans are included on the Effective Date), (viix) (1) release the Borrower from its obligations under Article X or under the Collateral Documents or (2) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement Collateral Documents and the Foreign Guarantee and Security Agreement Agreement, in each case, without the written consent of each Lender, (viix) except as provided in clause (d) of this Section or in any Collateral Document, release all or substantially all of the Collateral from the Lien of the Collateral DocumentsCollateral, without the written consent of each Lender Lender, or (viiixi) contractually except as provided in clause (d) of this Section or in any Collateral Document, subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).the
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the each Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings STX or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on STX or the Borrower in any case shall entitle STX or the Borrower to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.21, Section 2.23 with respect to such Loan Documentany Maturity Date extension and Section 2.24(a), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by HoldingsSTX, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdingseach of STX and the Borrower, the Borrowers if they are parties thereto, and the Administrative Agent Agent, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall shall
(i) extend or increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, ,
(ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, ,
(iii) postpone the scheduled date of payment of the principal amount final maturity of any Loan or L/C the required date of reimbursement of any LC Disbursement, or any required date for the payment of any interest thereon, or any 4159-0000-0000.0 fees payable hereunder, or reduce the amount of, waive or excuse any such required payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, ,
(iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, Lender,
(v) change any of the provisions of this Section 9.02, 9.02 or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender, ,
(vi) release all or substantially all of the Guarantors any Guarantor from their obligations its Guarantee under the U.S. applicable Guarantee and Security Agreement and the Foreign (except as expressly provided herein or in such Guarantee and Security Agreement Agreement), or limit its liability in respect of such Guarantee, without the written consent of each Lender, ,
(vii) release all or substantially all change the definition of the Collateral from term “Interest Period” to permit the Lien Borrower to select interest periods of the Collateral Documents, 9 or 12 months for SOFR Borrowings without the written consent of each Lender or affected thereby, or
(viii) contractually subordinate the payment if a Revolving Loan, Swingline Loan or Letter of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral Credit is being requested, modify conditions precedent set forth in favor of the Administrative Agent to Liens securing other Funded Debt Section 4.02 without the consent of each Lender; providedRevolving Loan Lenders holding, that in the aggregate, no such change, waiver, discharge or termination shall, without the consent less than 50.0% of the Supermajority LendersRevolving Loan Percentages, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood provided further that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the any Swingline Lender hereunder under this Agreement or the Guarantee Agreement without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the such Swingline Lender, as the case may be and be.
(2c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) to any Loan Document requiring the Administrative Agent and the Borrowers mayconsent of all affected Lenders, with if the consent of the other Required Lenders to such Proposed Change is obtained, but without the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in this Section 9.02(b) being referred to as a “Non-Consenting Lender”), then, so long as the Lender that is acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower’s request, any assignee that is reasonably acceptable to the Administrative Agent (and that is not a Non-Consenting Lender) shall have the right, with the prior consent of the Administrative Agent, each Swingline Lender and each Issuing Bank (which consent (x) shall not be unreasonably withheld or delayed and (y) in the case of any consent required by any Issuing Bank, shall be deemed to have been given in the event that such Issuing Bank fails to respond in writing to a request for consent within two Business Days of receipt thereof), to purchase from such Non-Consenting Lender, and such Non-Consenting Lender agrees that it shall, upon the Borrower’s request, sell and assign to such assignee, at no expense to such Non-Consenting Lender (including with respect to any processing and recordation fees that may be applicable pursuant to Section 9.04(b)(ii)(c), which shall be paid by the assignee or the Borrower), all the Revolving Commitments and Revolving Loans (in the case of a Revolving Loan Lender) and the Term Loan Commitments and Term Loans (in the case of a Term Loan Lender) of such Non-Consenting Lender for an amount equal to the principal balance of all applicable Loans (and in the case of a Revolving Loan Lender, funded participations in Swingline Loans and unreimbursed LC Disbursements) 4159-0000-0000.0 held by such Non-Consenting Lender and all accrued interest, fees and other Personamounts with respect thereto through the date of sale (including amounts under Sections 2.14, amend2.15 and 2.16), modify or supplement this Agreement such purchase and any other Loan Document sale to cure any ambiguity, typographical or technical error, defect or inconsistency. be consummated pursuant to an executed Assignment and Acceptance in accordance with Section 9.04(b) (which Assignment and Acceptance need not be signed by such Non-Consenting Lender).
(d) Notwithstanding anything to the contrary herein, (i) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does hereunder, except that the Commitment of such Lender may not require be increased or extended without the consent of each affected such Lender and (it being understood that any Commitments or Loans held or deemed held by any ii) no Defaulting Lender shall be excluded included as a Lender for a vote purposes of the Lenders hereunder requiring any calculation of “Required Lenders” (in either the numerator or the denominator).
(e) Notwithstanding anything contained herein to the contrary, this Agreement may be amended and restated without the consent of less than any Lender (but with the consent of the Borrower and the Administrative Agent) if, upon giving effect to such amendment and restatement, such Lender shall no longer be a party to this Agreement (as so amended and restated), the Commitments of such Lender shall have terminated (but such Lender shall continue to be entitled to the benefits of Sections 2.14 through 2.16 (inclusive) and 9.03, and in each other term of a Loan Document that expressly survives termination of such Loan Document), such Lender shall have no other Commitment or other Obligation hereunder and shall have been paid in full all affected Lendersprincipal, interest and other amounts owing to it or accrued for its account under this Agreement (and in the case of an Issuing Bank, all of its LC Exposure has been Cash Collateralized). For the avoidance of doubt it is understood that any transaction permitted by Section 2.23 shall not be subject to this Section 9.02.
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (ix) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, (vix) release all or substantially all increase the aggregate Commitments in excess of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents$600 million, without the written consent of each Lender or (viiixi) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on all or substantially all the ABL Priority Collateral in favor value of the Administrative Agent Collateral to the Liens securing any other Funded Debt Indebtedness, or contractually subordinate with respect to payment any Obligations, without the written consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04
(c) The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of the all Commitments, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and the cash collateralization of all Unliquidated Obligations in a manner satisfactory to each affected Lender, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $1 million during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.22 and Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise expressly permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (viii) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, or (viix) release all or substantially all amend the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, “Alternative Currency” without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lenderdirectly affected thereby; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04
(c) The Lenders hereby irrevocably authorize the Administrative Agent to, and the Administrative Agent shall release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon Payment in Full, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary (other than a Disposition to Holdings or any other Restricted Subsidiary) or to the extent a Loan Party is designated as an Unrestricted Subsidiary in accordance with Section 5.13, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that in addition to releases explicitly provided for in the preceding sentence the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of the greater of $5 million and 5% of Consolidated Total Assets for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. Notwithstanding anything herein to the contrary, a Subsidiary that is a Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Collateral Documents in Collateral owned by such Subsidiary shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. Upon any sale or other transfer by any Loan Party (other than to the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 9.02, the security interests in such Collateral created by the Collateral Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have A copy of any right to approve or disapprove any such amendment, waiver modification or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender supplement shall be excluded for a vote promptly delivered by the Administrative Agent to each Lender.
(f) In addition, notwithstanding the foregoing, this Agreement, including this Section 9.02, and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.22 to add any Incremental Term Loan Facility to this Agreement and (a) 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 (including the rights of the Incremental Term Loan Lenders hereunder requiring to share ratably in prepayments pursuant to Section 2.11), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any consent determination of less than all affected Lendersthe Required Lenders and (c) to amend other provisions of the Loan Documents so that the Incremental Term Loan Facility is appropriately incorporated (including this Section 9.02).
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such an Incremental Term Loan Document)Amendment and subject to clauses (c) and (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers BorrowerBorrowers and the Required Lenders or by Holdings, the Borrowers BorrowerBorrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the percentage with respect to any Class of Lenders in the definition of the term “Alternative CurrenciesMajority in Interest” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each LenderLender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Term Loan Amendment, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Commitments, the Revolving Loans and the Term Loans are included on the Effective Date), (vi) release the Company or all or substantially all of the Subsidiary Guarantors from their from, its obligations under Article X or the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each LenderSubsidiary Guaranty, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentsas applicable, without the written consent of each Lender or (viiivii) contractually subordinate the payment of the Obligations to waive any other Indebtedness or subordinate the Liens on the ABL Priority Collateral condition set forth in favor of the Administrative Agent to Liens securing other Funded Debt Section 4.02 without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the written consent of the Supermajority Lenders, (x) amend the definition Majority in Interest of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any Lenders of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) applicable Class (it being understood and agreed that the establishmentany amendment or waiver of, modification or elimination any consent with respect to, any provision of Reservesthis Agreement (other than any waiver expressly relating to Section 4.02) or any other Loan Document, including any amendment of any affirmative or negative covenant set forth herein or in each case by the Administrative Agent in accordance with the terms hereofany other Loan Document or any waiver of a Default or an Event of Default, will shall not be deemed to require be a Supermajority Lender consentwaiver of a condition set forth in Section 4.02 for purposes of this Section 9.02); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.25 shall require the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender); provided further, that no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Company and any Issuing Bank regarding such Issuing Bank’s Letter of Credit Commitment or the respective rights and obligations between the Company and such Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and such Issuing Bank, respectively. Notwithstanding the foregoing, no consent with respect to any amendment, waiver or other modification of this Agreement shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (2i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be directly affected by such amendment, waiver or other modification.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers BorrowerBorrowers to each relevant Loan Document (x) to add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Term Loan Amendment) to this Agreement and to permit 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 Revolving Loans, the initial Term Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrowerBorrowers only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein.
(e) If, no Defaulting Lender shall have in connection with any right to approve or disapprove any proposed amendment, waiver or consent hereunder which does not require requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (it being understood that any Commitments i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans held or deemed held by any Defaulting and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) such Non-Consenting Lender shall be excluded for a vote have received in same day funds on the day of such replacement an amount equal to (1) the Lenders outstanding principal amount of its Loans and participations in LC Disbursements and all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder requiring any consent to and including the date of less termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than all affected Lenders)sold to the replacement Lender.
Appears in 1 contract
Samples: Credit Agreement (Fuller H B Co)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company a Credit Agreement Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Credit Agreement Parties and the Required Lenders or by Holdings, the Borrowers Credit Agreement Parties and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) extend or increase the Commitment of any Lender or any Issuing Bank without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, but that any waiver of any condition set forth in Section 4.02 following the Restatement Effective Date shall require the consent of the Required Facility Lenders with respect to the Facility under which an extension of credit is to be made , (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c2.12(d) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each adversely affected Lender directly and each adversely affected therebyIssuing Bank, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders,” or the definition of “Alternative CurrenciesRequired Revolving Lenders,” “Required Facility Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, Lender directly and adversely affected thereby or (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, applicable Guaranty without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral except in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing a transaction permitted hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights rights, obligations or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be.
(c) Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and (2restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers may(i) 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 Term Loans and Revolving Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(d) Notwithstanding anything in this Section 9.02 to the contrary, technical and conforming modifications to the Loan Documents may be made with the consent of the Borrower Agent and the Administrative Agent to the extent necessary or appropriate (i) to integrate any Incremental Term Loans, any Increased Commitments, any Extended Term Loans or any Extended Revolving Commitments, (ii) to integrate borrowings and issuances of Letters of Credit in Alternative Currencies or additional Borrowers organized in jurisdictions other but without than the consent of any other PersonUnited States, amend, modify or supplement this Agreement and any other Loan Document (iii) to cure any ambiguity, typographical or technical erroromission, defect or inconsistency. Notwithstanding inconsistency and (iv) as contemplated by the definition of Permitted Foreign Borrower Jurisdiction.
(e) In addition, notwithstanding anything in this Agreement to the contrary hereincontrary, this Agreement may be amended after the Restatement Effective Date without consent of the Lenders, so long as no Defaulting Lender Event of Default shall have occurred and be continuing, as follows:
(i) to designate (X) any right Domestic Subsidiary of the Parent Entity that is a Restricted Subsidiary as a Domestic Subsidiary Borrower or (Y) the Parent Entity or any Subsidiary of the Parent Entity that is a Restricted Subsidiary, in each case, that is organized under the laws of a Permitted Foreign Borrower Jurisdiction as a Foreign Borrower, upon (A) ten Business Days (or such lesser period as may be agreed by the Administrative Agent) prior notice to approve the Administrative Agent (such notice to contain the name, primary business address and taxpayer identification number of such Subsidiary), (B) the execution and delivery by the Parent Entity or disapprove such Subsidiary, the Borrower Agent and the Administrative Agent of a Joinder Agreement, substantially in the form of Exhibit H (each, a “Joinder Agreement”), providing for the Parent Entity or such Subsidiary to become a Domestic Subsidiary Borrower or Foreign Borrower, as applicable, (C) the agreement and acknowledgement by the Parent Entity and each other Guarantor that the Guaranty covers the Obligations of such additional Borrower, (D) the delivery to the Administrative Agent of corporate or other applicable resolutions, other corporate or other applicable documents, certificates and legal opinions in respect of such Parent Entity or Subsidiary reasonably equivalent to comparable documents delivered on the Restatement Effective Date and (E) the delivery to the Administrative Agent of any amendmentdocumentation or other information reasonably requested by the Administrative Agent and necessary to satisfy obligations of the Lenders described in Section 9.13 or any applicable “know your customer” or other anti-money laundering Laws; and
(ii) to remove any Subsidiary (other than the U.S. Parent Borrower) as a Subsidiary Borrower upon (A) execution and delivery by the Parent Entity and the Borrower Agent to the Administrative Agent of a written notification to such effect, waiver or consent hereunder which does not require (B) repayment in full of all Loans made to such Subsidiary Borrower, (C) repayment in full of all other amounts owing by such Subsidiary Borrower under this Agreement and the consent other Loan Documents and (D) the deposit in a cash collateral account opened by the Administrative Agent of each affected Lender an amount equal to the aggregate then undrawn and unexpired amount of all Letters of Credit issued for the account of such Subsidiary Borrower (calculated, in the case of Letters of Credit denominated in Alternative Currencies, at the Dollar Equivalent thereof on the date of removal) (it being understood agreed that any Commitments or Loans held or deemed held by any Defaulting Lender such repayment shall be excluded for a vote in accordance with the other terms of the Lenders hereunder requiring any consent of less than all affected Lendersthis Agreement).
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02Section, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).or
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Samples: Credit Agreement (Mylan Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement Section 2.20 or any other Loan Document (with respect to such Loan Documentas provided in Section 2.14(c) and Section 9.02(f), neither this Agreement nor any other Loan Document nor any or provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Revolving Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default, Event of Default or mandatory prepayment shall not constitute an increase of any Commitment of any LenderRevolving Commitment), (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; provided thereby (except that only the consent no (A) amendment or modification of the Required Lenders shall be necessary financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement), (B) amendment entered into pursuant to amend the terms of Section 2.12(c2.14(c) or (C) amendment or modification of the provisions with respect to the application or amount of the default rate described in Section 2.13(c) or waive any obligation of the Borrowers any Borrower to pay interest or fees at such default, the impact of which may reduce interest, shall, in each case, constitute a reduction in the rate set forth thereinof interest or fees for purposes of this clause (ii)), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Commitment, without the written consent of each Lender directly and adversely affected thereby, (iv) change Section 2.17(b2.09(c), 2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the ratable reduction of Commitments or pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change the payment of waterfall provisions of Section 2.21(b) or 7.02 without the written consent of each Lender, (vi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender (it being understood that, solely with the consent of the parties prescribed by Section 2.20 to be parties to an Incremental Facility Agreement, Incremental Term Loans may be included in the determination of Required Lenders on substantially the same basis as the Revolving Commitments and the Revolving Loans are included on the Effective Date), (vii) (x) release the Borrower from its obligations under Article X or (y) release all or substantially all of the Subsidiary Guarantors from their obligations under the Subsidiary Guaranty, in each case, without the written consent of each Lender, or (viviii) except as provided in clause (d) of this Section, Section 9.15 or in any Collateral Document, release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Collateral, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with it being understood that any change to Section 2.21 shall require the consent of the other but without Administrative Agent, such Issuing Bank and the consent of any other PersonSwingline Lender).
(c) Notwithstanding the foregoing, amend, modify or supplement this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to cure add one or more credit facilities (in addition to the Incremental Term Loans pursuant to an Incremental Facility Agreement) to this Agreement and to permit extensions of credit and all related obligations and liabilities arising in connection therewith 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 Revolving Loans, Incremental Term Loans and the accrued interest and fees in respect thereof and (y) in connection with the foregoing, to permit, as deemed appropriate by the Administrative Agent, the Lenders providing such additional credit facilities to participate in any ambiguityrequired vote or action required to be approved by the Required Lenders or by any other number, typographical percentage or technical errorclass of Lenders hereunder.
(d) Each Secured Party hereby irrevocably authorize the Administrative Agent, defect at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon Payment in Full, (ii) constituting property being sold or inconsistencydisposed of if the Borrower certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), (iii) constituting property leased to the Borrower or any Subsidiary under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII, (v) as otherwise permitted by, but only in accordance with, the terms of any Loan Document, or (vi) if approved, authorized or ratified in writing by the Required Lenders, unless such release is required to be approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release particular types or items of Collateral pursuant hereto. Any such release shall not in any manner discharge, affect, or impair the Secured Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral.
(e) If, in connection with any proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), the Borrower may replace such Non-Consenting Lender in accordance with Section 2.19; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section 2.19 (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).
(f) Notwithstanding anything to the contrary herein, no Defaulting Lender if the Administrative Agent and the Borrower acting together identify any ambiguity, omission, mistake, typographical error or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall have be permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any right to approve or disapprove any amendment, waiver further action or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)other party to this Agreement.
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)an Incremental Facility Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees (including the prepayment fee set forth in Section 2.11(g)) payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the maturity of any Loan, or any scheduled date of payment of the principal amount of any Term Loan under Section 2.10, or L/C the required date of reimbursement of any LC Disbursement, or any date for the payment of any interest thereon, or any fees (including the prepayment fee set forth in Section 2.11(g)) payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any CommitmentCommitment or permit the expiration date of any Letter of Credit to be after the fifth Business Day prior to the Revolving Maturity Date, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, as the case may be), (vi) release all Holdings or substantially all of the Guarantors any Subsidiary Loan Party from their obligations its Guarantee under the U.S. Guarantee and Security Collateral Agreement and (except as expressly provided in the Foreign Guarantee and Security Agreement Collateral Agreement), or limit its liability in respect of such Guarantee, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien Liens of the Security Documents (except as expressly provided in the Collateral DocumentsAgreement), without the written consent of each Lender Lender, or (viii) contractually subordinate change any provisions of any Loan Document in a manner that by its terms adversely affects the payment rights in respect of the Obligations payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shallClass, without the written consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any Lenders holding a majority in interest of the following definitions, in outstanding Loans and unused Commitments of each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent)adversely affected Class; provided, further, provided further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be be, and (2B) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Revolving Lenders (but not the Term Loan Lenders) or the Term Loan Lenders (but not the Revolving Lenders) may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Holdings, the Borrower, the Required Lenders and the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Banks and the Borrowers maySwingline Lender) if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement. In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all affected Lenders, if the consent of the other Required Lenders to such Proposed Change is obtained, but without the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any other Personsuch Lender whose consent is not obtained as described in this Section 9.02(b) being referred to as a “Non-Consenting Lender”), amendthen, modify or supplement this Agreement and so long as the Lender that is acting as the Administrative Agent is not a Non-Consenting Lender, at the Borrower’s request, any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything assignee that is acceptable to the contrary herein, no Defaulting Lender Administrative Agent shall have any right the right, with the Administrative Agent’s consent, to approve or disapprove any amendmentpurchase from such Non-Consenting Lender, waiver or consent hereunder which does not require and such Non-Consenting Lender agrees that it shall, upon the consent of each affected Borrower’s request, sell and assign to such assignee, at no expense to such Non-Consenting Lender (it being understood that including any Commitments or processing and recordation fee as may be applicable pursuant to Section 9.04(b)(ii)(C)), all of the Commitments, Term Loans held or deemed and Revolving Exposure of such Non-Consenting Lender for an amount equal to the principal balance of all Term Loans and Revolving Loans (and funded participations in Swingline Loans and unreimbursed LC Disbursements) held by any Defaulting such Non-Consenting Lender shall and all accrued interest and fees with respect thereto through the date of sale, such purchase and sale to be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lendersconsummated pursuant to an executed Assignment and Assumption in accordance with Section 9.04(b).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank Purchaser Representative or any Lender Purchaser in exercising any right or power hereunder or under any other Loan Note Document shall operate as a waiver thereofthereof except as provided herein or in any Note Document, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Purchaser Representative and the Lenders Purchasers hereunder and under the any other Loan Documents Note Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Note Document or consent to any departure by Holdings or the Company any party hereto therefrom shall in any event be effective unless the same shall be is permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given. Without limiting the generality of the foregoing, to the making extent permitted by applicable Requirements of a Loan or issuance Law, the purchase of a Letter of Credit any Note shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender Purchaser Representative or any Issuing Bank Purchaser may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document Subject to Sections 9.02(b) through (with respect d) below and to such Loan DocumentSection 9.05(f), neither this Agreement nor any other Loan Note Document nor any provision hereof or thereof may be waived, amended or modified modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Issuer and the Required Lenders Purchasers (or by Holdings, the Borrowers and the Administrative Agent Purchaser Representative with the consent of the Required Lenders; provided, that no such agreement shall (iPurchasers) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other PersonNote Document (other than any waiver, amendamendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Note Document), modify pursuant to an agreement or supplement this Agreement agreements in writing entered into by the Required Purchasers and any other Loan Document to cure any ambiguityeach Note Party that is party thereto; provided that, typographical or technical error, defect or inconsistency. Notwithstanding anything to notwithstanding the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).foregoing:
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Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly and adversely affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, but that any waiver of any condition set forth in Section 4.02 following the Effective Date shall require the consent of the Required Revolving Lenders, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly adversely affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreements, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and be, or (2viii) the Administrative Agent and the Borrowers may, with the consent amend any provision of the other but Section 7.02 without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistencyeach Lender adversely affected thereby. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does hereunder, except that (a) the Commitment of such Lender may not be increased or extended, or amounts due to it reduced (other than by way of payment) or the payment date of any outstanding amounts owing to it extended, without the consent of such Lender, (b) a Defaulting Lender may approve or disapprove of any change to Section 2.17(b) or (c) that would alter the pro rata sharing of payments required thereby, and (c) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of each affected Lender the Defaulting Lender. Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (it being understood or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to add one or more additional credit facilities to this Agreement (including in replacement of any existing credit facility or portion thereof) and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders or Required Revolving Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrower and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing. Notwithstanding anything in this Section 9.02 to the contrary, (a) technical and conforming modifications to the Loan Documents may be made with the consent of the Borrower and the Administrative Agent to the extent necessary (i) to integrate any Incremental Term Loans or any Increased Commitments or Loans held (ii) to cure any error or deemed held defect and (b) without the consent of any Lender or the Issuing Bank, the Loan Parties and the Administrative Agent or any collateral agent may (in their respective sole discretion, or shall, to the extent required by any Defaulting Lender shall be excluded Loan Document) enter into any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for a vote the benefit of the Lenders hereunder requiring Secured Parties or as required by local law to give effect to, or protect any consent security interest for benefit of less than all affected Lenders)the Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document.
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.22 and Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise expressly permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (viii) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, or (viix) release all or substantially all amend the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, “Alternative Currency” without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lenderdirectly affected thereby; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04.
(c) The Lenders hereby irrevocably authorize the Administrative Agent to, and the Administrative Agent shall release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon Payment in Full, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary (other than a Disposition to Holdings or any other Restricted Subsidiary) or to the extent a Loan Party is designated as an Unrestricted Subsidiary in accordance with Section 5.13, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that in addition to releases explicitly provided for in the preceding sentence the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of the greater of $5 million and 5% of Consolidated Total Assets for the most recently ended Reference Period for which financial statements have been (or were required to be) delivered to the Administrative Agent during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. Notwithstanding anything herein to the contrary, a Subsidiary that is a Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Collateral Documents in Collateral owned by such Subsidiary shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. Upon any sale or other transfer by any Loan Party (other than to the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 9.02, the security interests in such Collateral created by the Collateral Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have A copy of any right to approve or disapprove any such amendment, waiver modification or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender supplement shall be excluded for a vote promptly delivered by the Administrative Agent to each Lender.
(f) In addition, notwithstanding the foregoing, this Agreement, including this Section 9.02, and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.22 to add any Incremental Term Loan Facility to this Agreement and (a) 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 (including the rights of the Incremental Term Loan Lenders hereunder requiring to share ratably in prepayments pursuant to Section 2.11), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any consent determination of less than all affected Lendersthe Required Lenders and (c) to amend other provisions of the Loan Documents so that the Incremental Term Loan Facility is appropriately incorporated (including this Section 9.02).
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Waivers; Amendments. (a) No failure or delay by on the part of the Administrative Agent, any Issuing Bank or any Lender to exercise and no delay in exercising exercising, and no course of dealing with respect to, any right right, power or privilege, or any abandonment or discontinuance of steps to enforce such right, power hereunder or privilege, under any other of the Loan Document Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any such right right, power or power, or privilege under any abandonment or discontinuance of steps to enforce such a right or power, the Loan Documents preclude any other or further exercise thereof or the exercise of any other right right, power or powerprivilege. The rights and remedies of the Administrative Agent, the any Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.0212.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect Subject to such Loan DocumentSections 3.03(c), 3.03(d) and 3.03(f) and 12.02(c) below, neither this Agreement nor any other provision hereof nor any Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into (x) by Holdings, the Borrowers Borrower and/or the other applicable Loan Parties and the Required Majority Lenders or (y) by Holdings, the Borrowers Borrower and/or the other applicable Loan Parties and the Administrative Agent with the consent of the Required Majority Lenders; provided, provided that no such agreement shall shall:
(i) increase the Commitment, Elected Commitment or Maximum Credit Amount of any Lender without the written consent of such Lender,
(ii) increase the Borrowing Base without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), or decrease or maintain the Borrowing Base without the consent of the Required Lenders; provided that a Scheduled Redetermination and the delivery of a Reserve Report may be postponed by the Majority Lenders; provided further that it being is understood that any waiver (or amendment or modification that would have the effect of a waiver waiver) of any condition precedent set forth in Section 4.02 the right of the Required Lenders to adjust (through a reduction of) the Borrowing Base or the waiver amount of any Default or mandatory prepayment such adjustment in the form of a reduction to the Borrowing Base pursuant to the Borrowing Base Adjustment Provisions in connection with the occurrence of a relevant event giving rise to such right shall not constitute an increase require the consent of any Commitment of any Lender, the Required Lenders,
(iiiii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the stated rate of interest or premium thereon, or reduce any fees payable hereunder, or reduce any other Secured Obligations hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby; provided that only thereby (except in connection with any amendment or waiver of the applicability of any post-default increase in interest rates, which shall be effective with the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, Majority Lenders),
(iiiiv) postpone the scheduled date of (A) payment or prepayment of the principal amount of any Loan or L/C LC Disbursement, or (B) any interest thereon, or (C) any fees payable hereunder, or any other Secured Obligations hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, Termination Date without the written consent of each Lender directly and adversely affected thereby, ,
(ivv) change Section 2.17(b4.01(b) or (c), Section 9.08(a4.01(c) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly and adversely affected thereby,
(vi) waive or amend Section 10.02(d) without the written consent of each directly and adversely affected Lender; provided that any waiver or amendment to Section 10.02(d) or to this proviso in this Section 12.02(b)(vi), or any amendment or modification to any Security Instrument that results in the Secured Swap Agreement secured by such Security Instrument no longer being secured thereby on an equal and ratable basis with the principal of the Loans, or any amendment or other change to the definition of the terms “Secured Swap Agreement,” or “Secured Swap Provider,” which would result in an equivalent effect shall also require the written consent of each Secured Swap Provider adversely affected thereby,
(vvii) release all or substantially all of the value of the guarantees provided by the Guarantors pursuant to the Loan Documents (other than as a result of a transaction permitted hereby), release all or substantially all of the Collateral (other than as provided in Section 11.10), without the written consent of each directly and adversely affected Lender (other than any Defaulting Lender),
(viii) prior to the occurrence of any Event of Default under Sections 10.01(h) or 10.01(i), subordinate the Lien on all or substantially all of the Collateral securing the Secured Obligations to the Lien securing any other Indebtedness without the written consent of each Lender directly affected thereby (provided that no such Lender’s consent shall be required pursuant to this Section 12.02(b)(viii) in connection with any “debtor-in-possession” financing or the use of the Collateral in any insolvency proceeding), or
(ix) change any of the provisions of this Section 9.02, 12.02(b) or the definition definitions of “Majority Lenders” or “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make under any determination other Loan Documents or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral any other Loan Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each directly and adversely affected Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank hereunder or the Swingline Lender hereunder under any other Loan Document without the prior written consent of the Administrative Agent, the relevant Agent or Issuing Bank or the Swingline LenderBank, as the case may be. Notwithstanding the foregoing, any supplement to any Schedule shall be and effective simply by delivering to the Administrative Agent a supplemental schedule clearly marked as such and, upon receipt, the Administrative Agent will promptly deliver a copy thereof to the Lenders.
(2c) Notwithstanding anything to the contrary contained in the Loan Documents, the Administrative Agent and the Borrowers mayBorrower, with the consent of the other but may amend, modify or supplement any Loan Document without the consent of any other PersonLender in order to (i) correct, amend, modify cure or supplement this Agreement and any other Loan Document to cure resolve any ambiguity, omission, defect, typographical or technical error, defect inconsistency or inconsistency. other manifest error therein, (ii) add a guarantor or collateral or otherwise enhance the rights and benefits of the Lenders, (iii) make administrative or operational changes not adverse to any Lender or (iv) adhere to any local Governmental Requirement or advice of local counsel.
(d) Notwithstanding anything to the contrary hereincontained in any Loan Documents, the Commitment of any Defaulting Lender may not be increased without its consent (it being understood, for avoidance of doubt, that no Defaulting Lender shall have any right to approve or disapprove any amendmentincrease, waiver decrease or consent hereunder which does not require reaffirmation of the Borrowing Base) and the Administrative Agent may with the consent of each affected Lender (it being understood that any Commitments the Borrower amend, modify or Loans held or deemed held by any supplement the Loan Documents to effectuate an increase to the Borrowing Base where such Defaulting Lender shall be excluded for a vote of does not consent to an increase to its Commitment, including not increasing the Lenders hereunder requiring any consent of less than all affected Lenders)Borrowing Base by the portion thereof applicable to the Defaulting Lender.
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Samples: Senior Secured Revolving Credit Agreement (Silverbow Resources, Inc.)
Waivers; Amendments. (a) No failure or delay by the Global Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Global Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Global Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither Neither this Agreement nor any other of the Combined Loan Document Documents nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Majority Lenders or by Holdings, the Borrowers Borrower and the Global Administrative Agent with the consent of the Required Majority Lenders, or, in the case of any other Combined Loan Document, pursuant to an agreement or agreements in writing entered into by the relevant Loan Parties thereto and the Majority Lenders or by the relevant Loan Parties thereto and the Global Administrative Agent with the consent of the Majority Lenders; provided, provided that no such agreement shall (i) increase the Global Commitment or Commitment of any Lender without the written consent of each such Lender directly affected thereby(other than, it being understood that in the case of a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any a Lender, pursuant to a reallocation in accordance with Section 2.1(c)), (ii) reduce reduce, or otherwise release the Borrower from its obligation to pay, the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any CommitmentMaturity Date, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.19(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.0210.2, or Section 2.8 or Section 2.11, or the definition of “Combined Lenders” or “Majority Lenders” or “Required Lenders” or the definition of “Alternative CurrenciesSupermajority Lenders” or “U.S. Required Lenders” or “U.S. Supermajority Lenders” or any other provision hereof of any Combined Loan Document specifying the number or percentage of Lenders, Canadian Lenders, or Combined Lenders required to determine or redetermine the Global Borrowing Base or required to waive, amend or modify any rights hereunder of the Combined Lenders thereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documentsthereunder, without the written consent of each Lender Combined Lender, (vi) release any Loan Party from its Guaranty (except as expressly provided in such Guaranty), or limit its liability in respect of such Guaranty, without the written consent of each Combined Lender, (vii) except as expressly provided herein, in the Intercreditor Agreement or in the Security Documents (as defined herein and in the Canadian Credit Agreement), release all or any part of the Collateral from the Liens of the Security Documents (as defined herein and in the Canadian Credit Agreement), without the written consent of each Combined Lender, or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness amend or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt modify Section 2.1(c) without the written consent of each Combined Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, waive, modify or otherwise affect the rights or duties of any Agent (as defined herein and in the Administrative AgentCanadian Credit Agreement), any Issuing Bank (as defined herein and in the Canadian Credit Agreement) or the Swingline Lender hereunder without the prior written consent of such Agent (as defined herein and in the Administrative AgentCanadian Credit Agreement), the relevant such Issuing Bank (as defined herein and in the Canadian Credit Agreement) or the such Swingline Lender, as the case may be be; and (2provided further that, without limiting the provisions of Section 7.5(b) or the last paragraph of Article IX, the Global Administrative Agent shall have the right to execute and the Borrowers may, with the consent deliver any release of the any Guaranty or Lien (or other but similar instrument) without the consent of any other Person, amend, modify Lender to the extent such release is required to permit the Borrower or supplement a Subsidiary to consummate a transaction permitted by this Agreement and or the other Combined Loan Documents, or as otherwise required as a result of any other Loan Document Subsidiary ceasing to cure any ambiguity, typographical or technical error, defect or inconsistencybe a Material Subsidiary. Notwithstanding anything to the contrary hereincontained in the Combined Loan Documents, no Defaulting Lender shall have the Borrower and/or any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender its Subsidiaries shall be excluded for a vote permitted at any time to consummate, or cause to be consummated, the MLP Transactions or any part thereof without any further consent or approval of any of the Lenders hereunder requiring any consent of less than all affected Agents or Combined Lenders)., provided such transactions are consummated in accordance and material compliance with the description set forth in Exhibit N.
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document the first sentence of Section 2.09(f) (with respect to such Loan Documentany commitment increase) and subject to Section 2.14(c), (d) and (f) and except as provided in Section 6.03(c) with respect to changes in fiscal year, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall shall:
(i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby(including any such Lender that is a Defaulting Lender); provided that, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, ;
(ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that (x) any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii) and (y) only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) reduce or to waive any obligation of the Borrowers to pay interest or any other amount at the applicable default rate set forth therein, in Section 2.13(e) or to amend Section 2.13(e);
(iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, thereby (other than with respect to the matters set forth in clauses (ii)(x) and (ii)(y) above);
(iv) change Section 2.17(b2.09(d) or Section 2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementwhich such payments are to be applied required thereby, without the written consent of each Lender directly affected thereby, (other than any Defaulting Lender);
(v) change the definition of any Borrowing Base (or any defined terms used therein) in a manner that makes more credit available, increase the advance rates set forth in the definition of Borrowing Base or add new categories of eligible assets, in each case, without the written consent of each Lender (other than any Defaulting Lender);
(vi) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, );
(vii) release all or substantially all of the Collateral from the Lien value of the Collateral Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents, including with respect to a sale, disposition or dissolution of a Loan Guarantor permitted herein), without the written consent of each Lender or (other than any Defaulting Lender); or
(viii) contractually subordinate except as provided in clause (d) of this Section or in any Collateral Document (as in effect on the payment Effective Date), release all or substantially all of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt Collateral, without the written consent of each Lender (other than any Defaulting Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender) and (2B) no such agreement shall amend or modify the provisions of Section 2.06 or any letter of credit application and any bilateral agreement between the Borrower Representative and the Issuing Bank regarding the Issuing Bank’s Issuing Bank Sublimit or the respective rights and obligations between any Borrower and the Issuing Bank in connection with the issuance of Letters of Credit without the prior written consent of the Administrative Agent and the Issuing Bank, respectively. The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04.
(c) Notwithstanding the foregoing, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and each Borrower (x) to add one or more credit facilities to this Agreement and to permit 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 Revolving Loans and the accrued interest and fees in respect thereof and (y) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and Lenders.
(d) The Lenders and the Issuing Bank hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion, to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon satisfaction of the Final Release Conditions, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interests of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, (iv) constituting Excluded Assets or (v) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided that, the Administrative Agent may in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $15,000,000 during any calendar year without the prior written authorization of the Required Lenders(it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrowers as to the value of any Collateral to be so released, without further inquiry). Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. In addition, each of the Lenders, on behalf of itself and any of its Affiliates that are Secured Parties, irrevocably authorizes the Administrative Agent, at its option and in its discretion, (i) to subordinate any Lien on any assets granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 6.02(e) or (ii) in the event that the Company shall have advised the Administrative Agent that, notwithstanding the use by the Company of commercially reasonable efforts to obtain the consent of such holder (but without the requirement to pay any sums to obtain such consent) to permit the Administrative Agent to retain its liens (on a subordinated basis as contemplated by clause (i) above), the holder of such other Indebtedness requires, as a condition to the extension of such credit, that the Liens on such assets granted to or held by the Administrative Agent under any Loan Document be released, to release the Administrative Agent’s Liens on such assets. Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent.
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Company may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Company and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) such Non-Consenting Lender shall have received in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by such Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower Representative, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.
(f) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrowers only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents (i) to correct, amend, resolve or cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything inconsistency or correct any typographical error or other manifest error in any Loan Document, (ii) to comply with local law or advice of local counsel in any jurisdiction the laws of which govern any Collateral Document or that are relevant to the contrary hereincreation, no Defaulting Lender shall have perfection, protection and/or priority of any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote Lien in favor of the Lenders hereunder requiring Administrative Agent, (iii) to effect the granting, perfection, protection, expansion or enhancement of any consent security interest in any Collateral or additional property to become Collateral for the benefit of less than all affected the Secured Parties, (iv) to make administrative or operational changes not adverse to any Lender or (v) to add a guarantor or collateral or otherwise enhance the rights and benefits of the Lenders).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) extend or increase the Commitment of any Lender or any Issuing Bank without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.01 or Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, but that any waiver of any condition set forth in Section 4.02 following the Closing Date shall require the consent of the Required Facility Lenders with respect to the Facility under which an extension of credit is to be made, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to (x) amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth thereintherein or (y) modify or replace Schedule 2.13, (iii) subject to Section 2.20, postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory repayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange provisions of Article VII, in a manner that would alter each case, with respect to the pro rata sharing application of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementany distribution waterfall set forth therein, without the written consent of each adversely affected Lender directly and each adversely affected therebyIssuing Bank, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of ”, “Alternative CurrenciesRequired Revolving Lenders”, “Required Facility Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each LenderLender directly and adversely affected thereby, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee applicable Guaranty and Security Agreement and the Foreign Guarantee and Security Agreement Collateral Documents without the written consent of each LenderLender (except in a transaction permitted hereunder); provided that during a Collateral/Covenant Suspension Period, (x) the Administrative Agent may release all or substantially all of the Guarantors (other than the Borrower), without the consent of any Lender and (y) the Required Lenders may waive or amend any requirement to reinstate the guarantee obligations of released Guarantors in the future, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or Lender; provided that during a Collateral/Covenant Suspension Period, (viiix) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent may release all or substantially all of the Collateral from any Lien granted to Liens securing other Funded Debt without or held by the consent of each Lender; provided, that no such change, waiver, discharge or termination shallAdministrative Agent under the Collateral Documents, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or any Lender and (y) increase any advance rate the Required Lenders may waive or otherwise amend any requirement to reinstate Collateral in the future, (viii) subordinate in writing the Liens in all or substantially all of the following definitionsCollateral or subordinate in writing all or any portion of the Obligations under the Loan Documents, in each case to any other Liens or Indebtedness or other obligations of the effect Borrower or any other Loan Party without the written consent of which would be to increase each Lender and Issuing Bank or (ix) change the amounts available for borrowing hereunder: Borrowing Basecurrency of any Loan or Letter of Credit, Eligible Accounts without the written consent of each Lender and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood Issuing Bank directly affected thereby; provided further that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights rights, obligations or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be.
(c) Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and (2restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers may, Borrower (i) 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 Revolving Exposures and the Term Loans and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders.
(d) In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the other but without Administrative Agent, the consent Borrower and the Lenders providing the Replacement Revolving Loans (as defined below) and/or Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Revolving Loans of any Class (“Refinanced Revolving Loans”) and/or all outstanding Term Loans of any Class (“Refinanced Term Loans” and together with any Refinanced Revolving Loans, “Refinanced Loans”), as applicable, with a replacement revolving loan tranche (“Replacement Revolving Loans”) and/or a replacement term loan tranche (“Replacement Term Loans” and together with Replacement Revolving Loans, “Replacement Loans”), as applicable, hereunder; provided that (a) the aggregate principal amount of such Replacement Loans shall not exceed the aggregate principal amount (or accreted value, if applicable) of such Refinanced Loans except by an amount equal to unpaid accrued interest and premium thereon plus other Personreasonable amounts paid, amendand fees and expenses reasonably incurred, modify in connection with such refinancing, (b) the maturity date of any Replacement Loans shall be no earlier than the Revolving Credit Maturity Date or supplement the Amendment No. 2 Term Loan Maturity Date, as applicable, the Weighted Average Life to Maturity of Replacement Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Amendment No. 2 Term Loans and the Amendment No. 4 Term Loans and any such Replacement Revolving Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, and (c) all other terms applicable to such Replacement Loans (other than pricing, interest rate margins, rate floors, discounts, premiums, fees, and optional prepayment or optional redemption terms and provisions, all of which shall be determined by the Borrower) shall be substantially identical to, or less favorable to the Lenders providing such Replacement Loans than, those applicable to such Refinanced Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Loans in effect immediately prior to such refinancing or added to this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to for the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent benefit of the Lenders hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender no consent shall be excluded required by Lenders for a vote of the Lenders hereunder requiring any consent of less terms or conditions that are more restrictive than all affected Lendersthis Agreement if such terms or conditions are added to this Agreement).
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document) or the Fee Letter (with respect to any Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) extend or increase the Commitment of any Lender or any Issuing Bank without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or Section 4.03 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, but that any waiver of any condition set forth in Section 4.03 following the Closing Date shall require the consent of the Required Facility Lenders with respect to the Facility under which an extension of credit is to be made, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c2.12(d) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange provisions of Article VII, in a manner that would alter each case, with respect to the pro rata sharing application of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each adversely affected Lender directly and each adversely affected therebyIssuing Bank, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders,” or the definition of “Alternative CurrenciesRequired Revolving Lenders,” “Required Facility Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each LenderLender directly and adversely affected thereby, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee applicable Guaranty and Security Agreement and the Foreign Guarantee and Security Agreement Collateral Documents without the written consent of each LenderLender (except in a transaction permitted hereunder); provided that during a Covenant Suspension Period, (x) the Administrative Agent may release all or substantially all of the Guarantors (other than the Parent Entity), without the consent of any Lender and (y) the Required Lenders may waive or amend any requirement to reinstate the guarantee obligations of released Guarantors in the future, or (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or Lender; provided that during a Collateral Suspension Period, (viiix) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent may release all or substantially all of the of the Collateral from any Lien granted to Liens securing other Funded Debt without or held by the consent of each Lender; provided, that no such change, waiver, discharge or termination shallAdministrative Agent under the Collateral Documents, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or any Lender and (y) increase any advance rate the Required Lenders may waive or otherwise amend any of requirement to reinstate Collateral in the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood future; provided further that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights rights, obligations or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be. Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and (2restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers may(i) 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 Term Loans and Revolving Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount (or accreted value, if applicable) of such Refinanced Term Loans except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing, (b) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (c) all other terms applicable to such Replacement Term Loans (other than pricing, interest rate margins, rate floors, discounts, premiums, fees, and optional prepayment or optional redemption terms and provisions, all of which shall be determined by the Borrower Agent) shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing or added to this Agreement for the benefit of the Lenders hereunder (it being understood that no consent shall be required by Lenders for terms or conditions that are more restrictive than this Agreement if such terms or conditions are added to this Agreement); provided that the requirements set forth in clause (b) above shall not apply to any Indebtedness consisting of a customary bridge facility so long as such bridge facility automatically converts into long-term Indebtedness that satisfies the requirements of such clause (b). In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Revolving Loans (as defined below) to permit the refinancing of all outstanding Revolving Loans of any Class (“Refinanced Revolving Loans”) with a replacement term loan tranche (“Replacement Revolving Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Revolving Loans shall not exceed the aggregate principal amount (or accreted value, if applicable) of such Refinanced Revolving Loans except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing, (b) the maturity date of any Replacement Revolving Loans shall be no earlier than the Revolving Credit Maturity Date and such Replacement Revolving Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, and (c) all other terms applicable to such Replacement Revolving Loans (other than pricing, interest rate margins, rate floors, discounts, premiums, fees, and optional prepayment or optional redemption terms and provisions, all of which shall be determined by the Borrower Agent) shall be substantially identical to, or less favorable to the Lenders providing such Replacement Revolving Loans than, those applicable to such Refinanced Revolving Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Revolving Loans in effect immediately prior to such refinancing or added to this Agreement for the benefit of the Lenders hereunder (it being understood that no consent shall be required by Lenders for terms or conditions that are more restrictive than this Agreement if such terms or conditions are added to this Agreement). Notwithstanding anything in this Section 9.02 to the contrary, (a) modifications to the Loan Documents may be made with the consent of the Borrower Agent and the Administrative Agent to the extent necessary or appropriate (i) to integrate any Incremental Term Loans, any Increased Commitments, any Extended Term Loans or any Extended Revolving Commitments; provided that, without limitation of the foregoing, any such amendment may, (x) increase the interest rates, fees and other but amounts payable to any Class or Classes of Loans or Commitments hereunder, (y) increase, expand and/or extend any “most favored nation” provisions benefiting any Class or Classes of Loans or Commitments hereunder and (z) modify any other provision hereunder or under any other Loan Document in connection with the implementation of any Indebtedness permitted hereunder, where the terms of any such Indebtedness are more favorable to the lenders or holders thereof than the corresponding terms applicable to Loans and Commitments then existing hereunder, (ii) to integrate borrowings and issuances of Letters of Credit in Alternative Currencies or additional Borrowers organized in jurisdictions other than the United States, (iii) to cure any ambiguity, omission, defect or inconsistency and (iv) as contemplated by the definition of Permitted Foreign Borrower Jurisdiction and (b) without the consent of any other PersonLender or any Issuing Bank, amendthe Loan Parties and the Administrative Agent or any collateral agent may (in their respective sole discretion, modify or shall, to the extent required by any Loan Document) enter into (x) any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties or as required by local law to give effect to, or protect any security interest for benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document and (y) any First Lien Intercreditor Agreement and/or Second Lien Intercreditor Agreement with the holders of Permitted Debt Securities (or any amendment or supplement thereto with respect to additional Permitted Debt Securities).
(c) In addition, notwithstanding anything in this Agreement to the contrary, this Agreement may be amended after the Effective Date without consent of the Lenders, so long as no Event of Default shall have occurred and be continuing, as follows:
(i) to designate (X) any Domestic Subsidiary of the Parent Entity that is a Restricted Subsidiary as a Domestic Subsidiary Borrower or (Y) the Parent Entity or any Subsidiary of the Parent Entity that is a Restricted Subsidiary, in each case, that is organized under the laws of a Permitted Foreign Borrower Jurisdiction as a Foreign Borrower, upon (A) ten Business Days (or such lesser period as may be agreed by the Administrative Agent) prior notice to the Administrative Agent (such notice to contain the name, primary business address and taxpayer identification number (or equivalent), if any, of such Subsidiary), (B) the execution and delivery by the Parent Entity or such Subsidiary, the Borrower Agent and the Administrative Agent of a Joinder Agreement, substantially in the form of Exhibit J (each, a “Joinder Agreement”), providing for the Parent Entity or such Subsidiary to become a Domestic Subsidiary Borrower or Foreign Borrower, as applicable, (C) the agreement and acknowledgement by the Parent Entity and each other Guarantor that the Guaranty covers the Obligations of such additional Borrower, (D) the delivery to the Administrative Agent of corporate or other applicable resolutions, other corporate or other applicable documents, certificates and legal opinions in respect of such Parent Entity or Subsidiary reasonably equivalent to comparable documents delivered on the Effective Date and the Closing Date and (E) the delivery to the Administrative Agent of any documentation or other information reasonably requested by the Administrative Agent and necessary to satisfy obligations of the Lenders described in Section 9.13 or any applicable “know your customer” or other anti-money laundering Laws; and
(ii) to remove the Parent Entity or any Subsidiary (other than the U.S. Parent Borrower) as a Borrower upon (A) execution and delivery by the Parent Entity and the Borrower Agent to the Administrative Agent of a written notification to such effect, (B) repayment in full of all Loans made to such Borrower, (C) repayment in full of all other amounts owing by such Borrower under this Agreement and any the other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything Documents and (D) the deposit in a cash collateral account opened by the Administrative Agent of an amount equal to the contrary hereinaggregate then undrawn and unexpired amount of all Letters of Credit issued for the account of such Borrower (calculated, no Defaulting Lender shall have any right to approve or disapprove any amendmentin the case of Letters of Credit denominated in Alternative Currencies, waiver or consent hereunder which does not require at the consent Dollar Equivalent thereof on the date of each affected Lender removal) (it being understood agreed that any Commitments or Loans held or deemed held by any Defaulting Lender such repayment shall be excluded for a vote in accordance with the other terms of the Lenders hereunder requiring any consent of less than all affected Lendersthis Agreement).
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph clause (b) of this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document Section 2.22 and Section 2.23 (with respect to such Loan Documentany commitment increase), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, it being understood (including any such Lender that is a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the any scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(ad) or the CAM Exchange in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), (v) change any of the provisions of this Section 9.02, 9.02 or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (vi) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender), (vii) release any Loan Guarantor from its obligation under its Loan Guaranty (except as otherwise expressly permitted herein or in the other Loan Documents), without the written consent of each Lender (other than any Defaulting Lender), (viii) except as provided in clauses (d) and (e) of this Section 9.02 or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender, or (viix) release all or substantially all amend the definition of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, “Alternative Currency” without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lenderdirectly affected thereby; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Issuing Banks hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline LenderIssuing Banks, as the case may be and (2) it being understood that any change to Section 2.20 shall require the consent of the Administrative Agent and the Borrowers Issuing Banks). The Administrative Agent may also amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04
(c) The Lenders hereby irrevocably authorize the Administrative Agent to, and the Administrative Agent shall release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon Payment in Full, (ii) constituting property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100% of the Equity Interest of a Subsidiary (other than a Disposition to Holdings or any other Restricted Subsidiary), the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary, (iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of the Required Lenders; provided, that the Administrative Agent may, in its discretion, release its Liens on Collateral valued in the aggregate not in excess of $5 million during any calendar year without the prior written authorization of the Required Lenders (it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall be without recourse to or warranty by the Administrative Agent. Notwithstanding anything herein to the contrary, a Subsidiary that is a Loan Party shall automatically be released from its obligations under the Loan Documents, and all security interests created by the Collateral Documents in Collateral owned by such Subsidiary shall be automatically released, upon the consummation of any transaction permitted by this Agreement as a result of which such Subsidiary ceases to be a Subsidiary; provided that, if so required by this Agreement, the Required Lenders shall have consented to such transaction and the terms of such consent shall not have provided otherwise. Upon any sale or other transfer by any Loan Party (other than to the Borrower or any other Loan Party) of any Collateral in a transaction permitted under this Agreement, or upon the effectiveness of any written consent to the release of the security interest created under any Collateral Document in any Collateral pursuant to Section 9.02, the security interests in such Collateral created by the Collateral Documents shall be automatically released. In connection with any termination or release pursuant to this Section, the Administrative Agent shall execute and deliver to any Loan Party, at such Loan Party’s expense, all documents that such Loan Party shall reasonably request to evidence such termination or release. Any execution and delivery of documents pursuant to this Section shall be without recourse to or warranty by the Administrative Agent.
(d) If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided, that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(e) Notwithstanding anything to the contrary herein the Administrative Agent may, with the consent of the other but without the consent of any other PersonBorrower only, amend, modify or supplement this Agreement and or any of the other Loan Document Documents to cure any ambiguity, typographical or technical erroromission, mistake, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have A copy of any right to approve or disapprove any such amendment, waiver modification or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender supplement shall be excluded for a vote promptly delivered by the Administrative Agent to each Lender.
(f) In addition, notwithstanding the foregoing, this Agreement, including this Section 9.02, and the other Loan Documents may be amended (or amended and restated) pursuant to Section 2.22 to add any Incremental Term Loan Facility to this Agreement and (a) 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 (including the rights of the Incremental Term Loan Lenders hereunder requiring to share ratably in prepayments pursuant to Section 2.11), the Security Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof, (b) to include appropriately the Lenders holding such credit facility in any consent determination of less than all affected Lendersthe Required Lenders and (c) to amend other provisions of the Loan Documents so that the Incremental Term Loan Facility is appropriately incorporated (including this Section 9.02).
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower Agent therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) . Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document) or the Fee Letter (with respect to any Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower Agent and the Required Lenders or by Holdings, the Borrowers Borrower Agent and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) extend or increase the Commitment of any Lender or any Issuing Bank without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or Section 4.03 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, but that any waiver of any condition set forth in Section 4.03 following the Closing Date shall require the consent of the Required Facility Lenders with respect to the Facility under which an extension of credit is to be made, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c2.12(d) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender and Issuing Bank directly and adversely affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange provisions of Article VII, in a manner that would alter each case, with respect to the pro rata sharing application of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each adversely affected Lender directly and each adversely affected therebyIssuing Bank, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders,” or the definition of “Alternative CurrenciesRequired Revolving Lenders,” “Required Facility Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each LenderLender directly and adversely affected thereby, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee applicable Guaranty and Security Agreement and the Foreign Guarantee and Security Agreement Collateral Documents without the written consent of each LenderLender (except in a transaction permitted hereunder); provided that during a Covenant Suspension Period, (x) the Administrative Agent may release all or substantially all of the Guarantors (other than the Parent Entity), without the consent of any Lender and (y) the Required Lenders may waive or amend any requirement to reinstate the guarantee obligations of released Guarantors in the future, or (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or Lender; provided that during a Collateral Suspension Period, (viiix) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent may release all or substantially all of the of the Collateral from any Lien granted to Liens securing other Funded Debt without or held by the consent of each Lender; provided, that no such change, waiver, discharge or termination shallAdministrative Agent under the Collateral Documents, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or any Lender and (y) increase any advance rate the Required Lenders may waive or otherwise amend any of requirement to reinstate Collateral in the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood future; provided further that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights rights, obligations or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be. Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and (2restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers may(i) 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 Term Loans and Revolving Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount (or accreted value, if applicable) of such Refinanced Term Loans except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing, (b) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (c) all other terms applicable to such Replacement Term Loans (other than pricing, interest rate margins, rate floors, discounts, premiums, fees, and optional prepayment or optional redemption terms and provisions, all of which shall be determined by the Borrower Agent) shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing or added to this Agreement for the benefit of the Lenders hereunder (it being understood that no consent shall be required by Lenders for terms or conditions that are more restrictive than this Agreement if such terms or conditions are added to this Agreement); provided that the requirements set forth in clause (b) above shall not apply to any Indebtedness consisting of a customary bridge facility so long as such bridge facility automatically converts into long-term Indebtedness that satisfies the requirements of such clause (b). In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Borrowers and the Lenders providing the Replacement Revolving Loans (as defined below) to permit the refinancing of all outstanding Revolving Loans of any Class (“Refinanced Revolving Loans”) with a replacement term loan tranche (“Replacement Revolving Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Revolving Loans shall not exceed the aggregate principal amount (or accreted value, if applicable) of such Refinanced Revolving Loans except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing, (b) the maturity date of any Replacement Revolving Loans shall be no earlier than the Revolving Credit Maturity Date and such Replacement Revolving Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, and (c) all other terms applicable to such Replacement Revolving Loans (other than pricing, interest rate margins, rate floors, discounts, premiums, fees, and optional prepayment or optional redemption terms and provisions, all of which shall be determined by the Borrower Agent) shall be substantially identical to, or less favorable to the Lenders providing such Replacement Revolving Loans than, those applicable to such Refinanced Revolving Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Revolving Loans in effect immediately prior to such refinancing or added to this Agreement for the benefit of the Lenders hereunder (it being understood that no consent shall be required by Lenders for terms or conditions that are more restrictive than this Agreement if such terms or conditions are added to this Agreement). Notwithstanding anything in this Section 9.02 to the contrary, (a) modifications to the Loan Documents may be made with the consent of the Borrower Agent and the Administrative Agent to the extent necessary or appropriate (i) to integrate any Incremental Term Loans, any Increased Commitments, any Extended Term Loans or any Extended Revolving Commitments; provided that, without limitation of the foregoing, any such amendment may, (x) increase the interest rates, fees and other but amounts payable to any Class or Classes of Loans or Commitments hereunder, (y) increase, expand and/or extend any “most favored nation” provisions benefiting any Class or Classes of Loans or Commitments hereunder and (z) modify any other provision hereunder or under any other Loan Document in connection with the implementation of any Indebtedness permitted hereunder, where the terms of any such Indebtedness are more favorable to the lenders or holders thereof than the corresponding terms applicable to Loans and Commitments then existing hereunder, (ii) to integrate borrowings and issuances of Letters of Credit in Alternative Currencies or additional Borrowers organized in jurisdictions other than the United States, (iii) to cure any ambiguity, omission, defect or inconsistency and (iv) as contemplated by the definition of Permitted Foreign Borrower Jurisdiction and (b) without the consent of any other PersonLender or any Issuing Bank, amendthe Loan Parties and the Administrative Agent or any collateral agent may (in their respective sole discretion, modify or shall, to the extent required by any Loan Document) enter into (x) any amendment, modification or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties or as required by local law to give effect to, or protect any security interest for benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document and (y) any First Lien Intercreditor Agreement and/or Second Lien Intercreditor Agreement with the holders of Permitted Debt Securities (or any amendment or supplement thereto with respect to additional Permitted Debt Securities). In addition, notwithstanding anything in this Agreement to the contrary, this Agreement may be amended after the Effective Date without consent of the Lenders, so long as no Event of Default shall have occurred and be continuing, as follows: to designate (X) any Domestic Subsidiary of the Parent Entity that is a Restricted Subsidiary as a Domestic Subsidiary Borrower or (Y) the Parent Entity or any Subsidiary of the Parent Entity that is a Restricted Subsidiary, in each case, that is organized under the laws of a Permitted Foreign Borrower Jurisdiction as a Foreign Borrower, upon (A) ten Business Days (or such lesser period as may be agreed by the Administrative Agent) prior notice to the Administrative Agent (such notice to contain the name, primary business address and taxpayer identification number (or equivalent), if any, of such Subsidiary), (B) the execution and delivery by the Parent Entity or such Subsidiary, the Borrower Agent and the Administrative Agent of a Joinder Agreement, substantially in the form of Exhibit J (each, a “Joinder Agreement”), providing for the Parent Entity or such Subsidiary to become a Domestic Subsidiary Borrower or Foreign Borrower, as applicable, (C) the agreement and acknowledgement by the Parent Entity and each other Guarantor that the Guaranty covers the Obligations of such additional Borrower, (D) the delivery to the Administrative Agent of corporate or other applicable resolutions, other corporate or other applicable documents, certificates and legal opinions in respect of such Parent Entity or Subsidiary reasonably equivalent to comparable documents delivered on the Effective Date and the Closing Date and (E) the delivery to the Administrative Agent of Beneficial Ownership Certification, to the extent applicable, and any documentation or other information reasonably requested by the Administrative Agent and necessary to satisfy obligations of the Lenders described in Section 9.13 or any applicable “know your customer” or other anti-money laundering Laws; and to remove the Parent Entity or any Subsidiary (other than the U.S. Parent Borrower) as a Borrower upon (A) execution and delivery by the Parent Entity and the Borrower Agent to the Administrative Agent of a written notification to such effect, (B) repayment in full of all Loans made to such Borrower, (C) repayment in full of all other amounts owing by such Borrower under this Agreement and any the other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything Documents and (D) the deposit in a cash collateral account opened by the Administrative Agent of an amount equal to the contrary hereinaggregate then undrawn and unexpired amount of all Letters of Credit issued for the account of such Borrower (calculated, no Defaulting Lender shall have any right to approve or disapprove any amendmentin the case of Letters of Credit denominated in Alternative Currencies, waiver or consent hereunder which does not require at the consent Dollar Equivalent thereof on the date of each affected Lender removal) (it being understood agreed that any Commitments or Loans held or deemed held by any Defaulting Lender such repayment shall be excluded for a vote in accordance with the other terms of the Lenders hereunder requiring any consent of less than all affected Lendersthis Agreement).
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document Subject to SectionSections 2.14(b), and (with respect to such Loan Documentc) and (d), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided thereby (except that (A) any amendment or modification of the financial covenants in this Agreement (or defined terms used in the financial covenants in this Agreement) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii) and (B) only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay interest at the rate set forth thereinin Section 2.13(c) during the continuance of an Event of Default), (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment102
(c) If, without in connection with any proposed amendment, waiver or consent requiring the written consent of “each Lender” or “each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders,” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority LendersRequired Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (xi) amend another bank or other entity which is reasonably satisfactory to the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts Borrower and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the terms hereofrequirements of clause (b) of Section 9.04, will not be deemed and (ii) the Borrower shall pay to require a Supermajority such Non-Consenting Lender consent); provided, further, that in same day funds on the day of such replacement (1) no all interest, fees and other amounts then accrued but unpaid to such agreement shall amendNon-Consenting Lender by the Borrower hereunder to and including the date of termination, modify or otherwise affect the rights or duties of the Administrative Agentincluding without limitation payments due to such Non-Consenting Lender under Sections 2.15 and 2.17, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.
(d) If the Administrative Agent and the Borrowers mayBorrower acting together identify any ambiguity, with the consent omission, mistake, typographical error or other defect in any provision of the other but without the consent of this Agreement or any other PersonLoan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement this Agreement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other Loan Document party to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Ugi Corp /Pa/)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder 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 right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time. No notice or demand on the Borrower or Holdings in any case shall entitle the Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)any Revolving Commitment Increase or Incremental Term Facility Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders (or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided) or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders, provided that no such agreement shall shall:
(i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender, ); 120 Blue Bird Body Company Credit Agreement
(ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce the amount of scheduled amortization of the principal amount of any Loan or reduce any premium, fees or other amounts payable hereunder, without the written consent of each Lender directly and adversely affected thereby; thereby (it being understood that any waiver of any condition precedent set forth in Article IV or the waiver of any Default, or mandatory prepayment shall not constitute a reduction in principal, LC Disbursement, interest, fees or prepayment premiums)), provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay default interest at the rate set forth therein, pursuant to Section 2.13(c);
(iii) postpone the scheduled maturity of any Loan, or the date of any scheduled amortization payment of the principal amount of any Term Loan under Section 2.10 or L/C the reimbursement date with respect to any LC Disbursement, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected therebythereby (it being understood the waiving of the applicability of post-default increases in interest rates and any waiver of any Default, mandatory prepayment or condition precedent set forth in Article IV shall not constitute a postponement of any date for payment of any principal, LC Disbursement or interest, fees or prepayment premiums payable hereunder);
(iv) (A) change Section 2.17(bSections 2.10(c) or 2.18(b) or (c), Section 9.08(a) or the CAM Exchange hereof in a manner that would alter the pro rata sharing of payments required thereby or (B) change the order of application specified in Section 2.22(d2.11(f) of this Agreement or Section 6.5 7.03 hereof in a manner that would alter the manner in which payments or prepayments of principal, interest or other amounts shall be applied as among the U.S. Guarantee and Security AgreementLenders or Classes or Types of Loans, in each case without the written consent of each Lender directly and adversely affected thereby, ;
(v) change any of the provisions of this Section 9.02, 9.02 without the written consent of each Lender directly and adversely affected thereby;
(vi) reduce the percentage set forth in the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, as the case may be);
(vivii) release all or substantially all the value of the Guarantors from their obligations Guarantees under the U.S. Guarantee and Security Agreement and (except as expressly provided for in the Foreign Guarantee and Security Agreement Agreement) without the written consent of each Lender, Lender (viiexcept as expressly provided in the Security Documents or the other Loan Documents);
(viii) release all or substantially all of the Collateral from the Lien Liens of the Collateral Security Documents (except as expressly provided for in the Security Documents or the other Loan Documents) or subordinate a substantial portion of such Liens to other Lien except as expressly permitted under this Agreement or the other Loan Documents, in each case, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each LenderRequired Lenders; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, provided further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Swingline Lender or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant such Swingline Lender or such Issuing Bank or the Swingline LenderBank, as the case may be and (2B) the Administrative Agent exercise of rights and the Borrowers may, with the consent remedies in respect of the other but without Collateral shall be subject to the consent provisions of Section 4.02 of the Collateral Agreement. 121 Blue Bird Body Company Credit Agreement Notwithstanding anything to the contrary contained in this Section 9.02 or otherwise in this Agreement or any other PersonLoan Document, amend, modify or supplement (i) this Agreement and any other Loan Document may be amended, supplemented or otherwise modified as is reasonably necessary to effect the provisions of Section 2.20 with the consent of the Administrative Agent and the Borrower without the need to obtain the consent of any Lender or Issuing Bank, (ii) this Agreement and any other Loan Document may be amended, supplemented or otherwise modified, or any provision thereof waived as is reasonably necessary, with the consent of the Administrative Agent and the Borrower without the need to obtain the consent of any Lender or Issuing Bank, if such amendment, supplement, modification or waiver is delivered in order to (A) cure ambiguities, omissions, mistakes or defects or (B) cause any ambiguitySecurity Document to be consistent with this Agreement and the other Loan Documents, typographical (iii) without the consent of any Lender or technical errorIssuing Bank, defect the Borrower and the Administrative Agent or inconsistencyany other collateral agent may enter into any amendment, supplement, waiver or modification of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest of the Secured Parties in any Collateral or additional property to become Collateral for the benefit of the Secured Parties or as required by local law to give effect to, or protect any security interests for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable law or this Agreement or in each case to otherwise enhance the rights or benefits of any Lender under any Loan Document and (iv) the Fee Letter may be amended or modified, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. The Administrative Agent shall make available to the Lenders copies of each amendment or other modification to the Loan Documents.
(c) In connection with any proposed amendment, modification, waiver or termination (a “Proposed Change”) requiring the consent of all Lenders or all directly and adversely affected Lenders, if the consent of the Required Lenders (and, to the extent any Proposed Change requires the consent of Lenders holding Loans of any Class, the consent of a Majority in Interest of the outstanding Loans and unused Commitments of such Class) to such Proposed Change is obtained, but the consent to such Proposed Change of other Lenders whose consent is required is not obtained (any such Lender whose consent is not obtained as described in paragraph (b) of this Section being referred to as a “Non-Consenting Lender”), then, so long as the Lender that is acting as Administrative Agent is not a Non-Consenting Lender, the Borrower may, at its sole expense and effort, upon notice to such Non-Consenting Lender and the Administrative Agent, require such Non-Consenting Lender (unless prohibited under applicable law) to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement (or in respect of any applicable Class of Loans or Commitments only, in the case of any proposed amendment, modification, waiver or termination requiring the consent of all directly and adversely affected Lenders) to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that (a) the Borrower shall have received the prior written consent of the Administrative Agent to the extent such consent would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable (and, if a Revolving Commitment is being assigned, each Issuing Bank and Swingline Lender), which consent shall not unreasonably be withheld, (b) such Non-Consenting Lender shall have received payment of an amount equal to the outstanding par principal amount of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including pursuant to Section 2.11(a)(i)) (or all such amounts in respect of any applicable Class of Loans or Commitments only, in the case of any proposed amendment, modification, waiver or termination requiring the consent of all directly and adversely affected Lenders) from the Eligible Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (c) unless waived, the Borrower or such Eligible Assignee shall have paid to the Administrative Agent the processing and recordation fee specified in Section 9.04(b). 122 Blue Bird Body Company Credit Agreement
(d) Notwithstanding anything in this Agreement or the other Loan Documents to the contrary hereincontrary, no the Revolving Commitments, Term Loans and Revolving Exposure of any Lender that is at the time a Defaulting Lender shall not have any right voting or approval rights under the Loan Documents and shall be excluded in determining whether all Lenders (or all Lenders of a Class), all affected Lenders (or all affected Lenders of a Class), a Majority in Interest of Lenders of any Class or the Required Lenders have taken or may take any action hereunder (including any consent to approve any amendment or disapprove waiver pursuant to this Section 9.02); provided that (x) the Commitment of any amendmentDefaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, waiver amendment or modification requiring the consent hereunder which does not of all Lenders or each affected Lender that affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any such Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)Lender.
Appears in 1 contract
Samples: Credit Agreement (Blue Bird Corp)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Without limiting the generality of the foregoing, the execution and delivery of this Agreement, the making of a Loan or the issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect Subject to such Loan DocumentSections 2.08(e), 2.14 and 10.02(c), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers Borrower and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce the principal amount of any Loan or L/C any LC Disbursement or reduce the rate of interest or premium thereonthereon (other than as a result of any waiver of any increase in the interest rate applicable to any Loan pursuant to Section 2.13(d)), or reduce any fees payable hereunder, without the written consent of each Lender directly adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C any LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, in each case, without the written consent of each Lender directly adversely affected thereby, (iv) change Section 2.17(b2.08(c) or (c), Section 9.08(a2.18(b) or the CAM Exchange 2.18(c) or Section 7.02 in a manner that would alter the pro rata sharing of Commitment reductions or payments required thereby or change thereby, as the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementcase may be, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the percentage set forth in the definition of the term “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder hereunder, without the written consent of each Lender, (vi) waive or amend any condition set forth in Section 4.03 with respect to any Revolving Loan or Letter of Credit without the written consent of the Required Revolving Lenders, (vii) waive any condition precedent required under Section 4.01 without the written consent of each Arranger, (viii) change the percentage set forth in the definition of the term “Required Revolving Lenders” without the written consent of each Revolving Lender or (ix) release all or substantially all of the Guarantors from their obligations under value of the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Guarantors, taken as a whole, without the written consent of each Lender, except as expressly permitted hereunder (vii) in which case such release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would may be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case made by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consentacting alone); provided, further, provided further that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline LenderBank, as the case may be be. Notwithstanding anything else in this Section to the contrary (A) any amendment of the definition of the term “Applicable Rate” pursuant to the penultimate sentence of such definition shall require only the written consent of the Borrower and the Required Lenders and (2B) no consent with respect to any waiver, amendment or modification of this Agreement or any other Loan Document shall be required of any Defaulting Lender, except with respect to any waiver, amendment or other modification referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be adversely affected by such amendment, waiver or other modification.
(c) If the Administrative Agent and the Borrowers mayBorrower acting together identify any ambiguity, with the consent omission, mistake, typographical error or other defect in any provision of the other but without the consent of this Agreement or any other PersonLoan Document, then the Administrative Agent and the Borrower shall be permitted to amend, modify or supplement this Agreement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other Loan Document party to cure any ambiguitythis Agreement, typographical or technical errorso long as, defect or inconsistency. Notwithstanding anything in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the contrary hereinLenders, no Defaulting Lender shall have any right a written notice from the Required Lenders stating that the Required Lenders object to approve or disapprove any such amendment, waiver modification or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders)supplement.
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Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.20 with respect to such Loan Document)an Incremental Facility Amendment, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitionsor, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other PersonLoan Document, amend, modify pursuant to an agreement or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held agreements in writing entered into by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).the
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank Beneficiary or any Lender other Secured Party in exercising any right right, power or power remedy hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right right, power or powerremedy, or any abandonment or discontinuance of steps to enforce such a right right, power or powerremedy, preclude any other or further exercise thereof or the exercise of any other right right, power or powerremedy. The rights rights, powers and remedies of the Administrative Agent, the Issuing Banks Beneficiary and the Lenders any other Secured Party hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights rights, powers or remedies that they would otherwise have. No waiver of any provision of this Agreement Deed of Trust or consent to any departure by Holdings or the Company Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.028.5(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or Loan, the issuance of a Letter of Credit or the incurrence of any Other First Lien Obligations shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender Beneficiary or any Issuing Bank other Secured Party may have had notice or knowledge of such Default or Event of Default at the time. No notice or demand on Grantor in any case shall entitle Grantor to any other or further notice or demand in similar or other circumstances.
(b) Except as otherwise set forth in Neither this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document Deed of Trust nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by HoldingsBeneficiary and Grantor (and, the Borrowers and the Required Lenders or if required by Holdingsapplicable law, the Borrowers and the Administrative Agent Trustee), subject to any consent required in accordance with the consent Section 9.08 of the Required Lenders; provided, that no such agreement shall Credit Agreement (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b) or (cEquivalent Provision thereof), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; providedother Authorized Representative if and to the extent required by (and in accordance with) the applicable Other First Lien Agreement, that no such change, waiver, discharge or termination shall, without the consent and except as otherwise provided in any applicable Intercreditor Agreement. Beneficiary may conclusively rely on a certificate of an officer of the Supermajority Lenders, Borrower as to whether any amendment contemplated by this Section 8.5(b) is permitted without any further inquiry.
(xc) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary contained herein, no Defaulting Lender shall have any right to approve Beneficiary may grant extensions of time or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote waivers of the Lenders hereunder requiring requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to the Mortgaged Property where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Deed of Trust or any consent of less than all affected Lenders)other Loan Document.
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank the Collateral Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks Collateral Agent and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.0212.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, the Collateral Agent or any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except Other than as otherwise set forth expressly provided in this Agreement or any other Loan Document Section 2.06(e) and (f), with respect to such Loan Document)additional commitments, or Section 12.22, with respect to the addition or termination of Originators, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any such Lender, (ii) reduce or forgive the principal amount of any Loan or L/C Disbursement or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender directly affected thereby; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount any final maturity of any Loan or L/C DisbursementLoan, or any interest thereondate for the payment of any interest, fees or any fees other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change Section 2.17(b2.15(b) or (c), Section 9.08(a) or the CAM Exchange 5.07 in a manner that would alter the pro rata sharing of manner in which payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementare shared, without the written consent of each Lender directly affected therebyLender, (v) change, modify or affect the definition of Borrowing Base if the effect thereof would be to make more credit available, without the written consent of the Supermajority Lenders, (vi) change any of the provisions of this Section 9.02, 12.02 or the definition of “Required Lenders” or the definition of “Alternative CurrenciesSupermajority Lenders” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each Lender, or (vivii) release all or substantially all more than 10% of the Guarantors from their obligations under Collateral, as calculated at the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement time of such release, without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank Agent or the Swingline Lender Collateral Agent hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank Agent or the Swingline Lender, Collateral Agent as the case may be; provided, further, that the Receivables Transfer Agreement cannot be and (2) the Administrative Agent and the Borrowers may, with amended without the consent of the other but Supermajority Lenders and the Administrative Agent; provided, however, that, any Loan Document may be waived, amended, supplemented or modified pursuant to an agreement or agreements in writing entered into by the Borrower and the Administrative Agent (without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document Lender) solely to cure any ambiguitydefect, typographical error or omission of a technical erroror immaterial nature.
(c) If, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have in connection with any right to approve or disapprove any proposed amendment, waiver or consent hereunder which does not require requiring the consent of “the Supermajority Lenders”, “each Lender” or “each Lender affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote thereby”, the consent of the Required Lenders hereunder requiring any is obtained, but the consent of less other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and the Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 12.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.12 and 2.14, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.13 had the Loans of such Non-Consenting Lender been prepaid on such date rather than all affected Lenders)sold to the replacement Lender.
Appears in 1 contract
Samples: Credit and Security Agreement (Basic Energy Services Inc)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Holdings or the Company any Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect to such Loan Document), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each Lender directly affected thereby, it being understood that a waiver of any condition precedent set forth in Section 4.02 or the waiver of any Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, it being understood that any change to the definition of “Consolidated Leverage Ratio” or in the component definitions thereof shall not constitute a reduction in the rate; provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c2.13(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, it being understood that the waiver of (or amendment to the terms of) any mandatory prepayment of the Term Loans shall not constitute a postponement of any date scheduled for the payment of principal or interest, (iv) change Section 2.17(b2.18(b) or (c), Section 9.08(a) or the provisions of the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly affected therebyLender, (v) change any of the provisions of this Section 9.02, or the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. applicable Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement Agreements, without the written consent of each Lender, Lender or (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, provided further that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistencybe. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders). Notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrowers (i) 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 Term Loans and Revolving Credit Exposures and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders. In addition, notwithstanding the foregoing, this Agreement and the other Loan Documents may be amended with the written consent of the Administrative Agent, the Company and the Lenders providing the Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans of any Class (“Refinanced Term Loans”) with a replacement term loan tranche denominated in Dollars or, in the case of the Euro Tranche A Term Loan or Euro Tranche B Term Loan, in Euros (“Replacement Term Loans”) hereunder; provided that (a) the aggregate principal amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term Loans shall not be higher than the Applicable Rate for such Refinanced Term Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans shall not be shorter than the Weighted Average Life to Maturity of such Refinanced Term Loans at the time of such refinancing (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the Term Loans) and (d) all other terms applicable to such Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders providing such Replacement Term Loans than, those applicable to such Refinanced Term Loans, except to the extent necessary to provide for covenants and other terms applicable to any period after the latest final maturity of the Term Loans in effect immediately prior to such refinancing.
Appears in 1 contract
Samples: Credit Agreement (Mylan Inc.)
Waivers; Amendments. (a) No failure or delay by on the part of the Administrative Agent, any Issuing Bank or any Lender to exercise and no delay in exercising exercising, and no course of dealing with respect to, any right right, power or privilege, or any abandonment or discontinuance of steps to enforce such right, power hereunder or privilege, under any other of the Loan Document Documents shall operate as a waiver thereof, nor shall any single or partial exercise of any such right right, power or power, or privilege under any abandonment or discontinuance of steps to enforce such a right or power, the Loan Documents preclude any other or further exercise thereof or the exercise of any other right right, power or powerprivilege. The rights and remedies of the Administrative Agent, the any Issuing Banks Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.0212.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
(b) Except as otherwise set forth in this Agreement or any other Loan Document (with respect Subject to such Loan DocumentSections 3.03(c), 3.03(d) and 3.03(e) and 12.02(c) below, neither this Agreement nor any other provision hereof nor any Loan Document nor any provision hereof or thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into (x) by Holdings, the Borrowers Borrower and/or the other applicable Loan Parties and the Required Majority Lenders or (y) by Holdings, the Borrowers Borrower and/or the other applicable Loan Parties and the Administrative Agent with the consent of the Required Majority Lenders; provided, provided that no such agreement shall shall:
(i) increase the Commitment Maximum Credit Amount of any Lender without the written consent of such Lender,
(ii) increase the Borrowing Base without the written consent of each Lender directly affected thereby(other than any Defaulting Lender), or decrease or maintain the Borrowing Base without the consent of the Required Lenders; provided that a Scheduled Redetermination and the delivery of a Reserve Report may be postponed by the Majority Lenders; provided further that it being is understood that any waiver (or amendment or modification that would have the effect of a waiver waiver) of any condition precedent set forth in Section 4.02 the right of the Required Lenders to adjust (through a reduction of) the Borrowing Base or the waiver amount of any Default or mandatory prepayment such adjustment in the form of a reduction to the Borrowing Base pursuant to the Borrowing Base Adjustment Provisions in connection with the occurrence of a relevant event giving rise to such right shall not constitute an increase require the consent of any Commitment of any Lender, the Required Lenders,
(iiiii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the stated rate of interest or premium thereon, or reduce any fees payable hereunder, or reduce any other Secured Obligations hereunder or under any other Loan Document, without the written consent of each Lender directly and adversely affected thereby; provided that only thereby (except in connection with any amendment or waiver of the applicability of any post-default increase in interest rates, which shall be effective with the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay interest at the rate set forth therein, Majority Lenders),
(iiiiv) postpone the scheduled date of (A) payment or prepayment of the principal amount of any Loan or L/C LC Disbursement, or (B) any interest thereon, or (C) any fees payable hereunder, or any other Secured Obligations hereunder or under any other Loan Document, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, Termination Date without the written consent of each Lender directly and adversely affected thereby, ,
(ivv) change Section 2.17(b4.01(b) or (c), Section 9.08(a4.01(c) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of each Lender directly and adversely affected thereby,
(vi) waive or amend Section 10.02(c) without the written consent of each directly and adversely affected Lender; provided that any waiver or amendment to Section 10.02(c) or to this proviso in this Section 12.02(b)(vi), or any amendment or modification to any Security Instrument that results in the Secured Swap Agreement secured by such Security Instrument no longer being secured thereby on an equal and ratable basis with the principal of the Loans, or any amendment or other change to the definition of the terms “Secured Swap Agreement,” or “Secured Swap Provider,” which would result in an equivalent effect shall also require the written consent of each Secured Swap Provider adversely affected thereby,
(vvii) release all or substantially all of the value of the guarantees provided by the Guarantors pursuant to the Loan Documents (other than as a result of a transaction permitted hereby), release all or substantially all of the Collateral (other than as provided in Section 11.10), without the written consent of each directly and adversely affected Lender (other than any Defaulting Lender), or
(viii) change any of the provisions of this Section 9.02, 12.02(b) or the definition definitions of “Majority Lenders” or “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make under any determination other Loan Documents or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral any other Loan Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each directly and adversely affected Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank hereunder or the Swingline Lender hereunder under any other Loan Document without the prior written consent of the Administrative Agent, the relevant Agent or Issuing Bank or the Swingline LenderBank, as the case may be. Notwithstanding the foregoing, any supplement to any Schedule shall be and effective simply by delivering to the Administrative Agent a supplemental schedule clearly marked as such and, upon receipt, the Administrative Agent will promptly deliver a copy thereof to the Lenders.
(2c) Notwithstanding anything to the contrary contained in the Loan Documents, the Administrative Agent and the Borrowers mayBorrower, with the consent of the other but may amend, modify or supplement any Loan Document without the consent of any other PersonLender in order to (i) correct, amend, modify cure or supplement this Agreement and any other Loan Document to cure resolve any ambiguity, omission, defect, typographical or technical error, defect inconsistency or inconsistency. other manifest error therein, (ii) add a guarantor or collateral or otherwise enhance the rights and benefits of the Lenders, (iii) make administrative or operational changes not adverse to any Lender or (iv) adhere to any local Governmental Requirement or advice of local counsel.
(d) Notwithstanding anything to the contrary hereincontained in any Loan Documents, the Commitment of any Defaulting Lender may not be increased without its consent (it being understood, for avoidance of doubt, that no Defaulting Lender shall have any right to approve or disapprove any amendmentincrease, waiver decrease or consent hereunder which does not require reaffirmation of the Borrowing Base) and the Administrative Agent may with the consent of each affected Lender (it being understood that any Commitments the Borrower amend, modify or Loans held or deemed held by any supplement the Loan Documents to effectuate an increase to the Borrowing Base where such Defaulting Lender shall be excluded for a vote of does not consent to an increase to its Commitment, including not increasing the Lenders hereunder requiring any consent of less than all affected Lenders)Borrowing Base by the portion thereof applicable to the Defaulting Lender.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Silverbow Resources, Inc.)
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the any other Loan Documents Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement any Loan Document (other than any Fee Letter) or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any the Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Except as provided in the first sentence of Section 2.09(f) (with respect to any commitment increase) and Section 2.23 or as otherwise set forth in this Agreement expressly provided herein or any other Loan Document (with respect Document, and subject to such Loan Document)Section 2.14(c) and Section 9.02(e) below, neither this Agreement nor any other Loan Document (other than any Fee Letter) nor any provision hereof or thereof may be waived, amended or modified except (x) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Required Lenders (or by Holdings, the Borrowers and the Administrative Agent with the consent of the Required Lenders) or (y) in the case of any such other Loan Document (other than any such amendment to effectuate any modification or supplement or joinder thereto expressly contemplated by the terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, with the consent of the Required Lenders; provided, provided that no such agreement shall shall:
(i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (including any such Lender that is a Defaulting Lender); it being understood that a waiver of any condition precedent set forth in Section 4.02 Article IV or the waiver of any Default, Event of Default or mandatory prepayment shall not constitute an increase of any Commitment of any Lender, ,
(ii) reduce or forgive the principal amount of any Loan or L/C LC Disbursement (it being understood that a waiver of any Default, Event of Default or mandatory prepayment shall not constitute a reduction or forgiveness in principal) or reduce the rate of interest or premium thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby; thereby (provided that (A) any amendment or modification of the financial covenants in this Agreement (or any defined term used therein) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii) and (B) only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers to pay default interest at the rate set forth therein, (iii) postpone the scheduled date of payment of the principal amount of any Loan or L/C Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) change pursuant to Section 2.17(b) or (c2.13(i), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreement, without the written consent of each Lender directly affected thereby, (v) change any of the provisions of this Section 9.02, the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender, (vi) release all or substantially all of the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lender, (vii) release all or substantially all of the Collateral from the Lien of the Collateral Documents, without the written consent of each Lender or (viii) contractually subordinate the payment of the Obligations to any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shall, without the consent of the Supermajority Lenders, (x) amend the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any of the following definitions, in each case the effect of which would be to increase the amounts available for borrowing hereunder: Borrowing Base, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent); provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Issuing Bank or the Swingline Lender, as the case may be and (2) the Administrative Agent and the Borrowers may, with the consent of the other but without the consent of any other Person, amend, modify or supplement this Agreement and any other Loan Document to cure any ambiguity, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder which does not require the consent of each affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of less than all affected Lenders).,
Appears in 1 contract
Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder 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 right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any Loan Document or consent to any departure by Holdings or the Company any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.02Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance the issuance, amendment, renewal or extension of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default at the time.. No notice or demand on the Borrower or Holdings in any case shall entitle the Borrower or Holdings to any other or further notice or demand in similar or other circumstances. 163
(b) Except as otherwise set forth provided in this Agreement or any other Loan Document (Section 2.18 with respect to such Loan Documentany Incremental Revolving Facility Amendment or Incremental Term Facility Amendment (including to provide for provisions relating to the issuance of letters of credit and swingline loans and provisions with respect to “defaulting lenders”), Section 2.19 with respect to any Refinancing Amendment or Section 6.15 with respect to a change in the fiscal year of Holdings and the Borrower, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified except except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by Holdings, the Borrowers and the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each case with the consent of the Required Lenders; provided, provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of each such Lender directly affected thereby, (it being understood that (x) a waiver of any condition precedent set forth in paragraphs (a) and (b) of Section 4.02 or the waiver of any Default Default, mandatory prepayment or mandatory prepayment reduction of the Commitments shall not constitute an extension or increase of any Commitment of any Lender and (y) a waiver of any condition precedent set forth in paragraph (c) of Section 4.02 shall require the consent of each Revolving Lender), (ii) reduce the principal amount of any Loan or L/C LC Disbursement or reduce the rate of interest or premium thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly and adversely affected thereby; thereby (it being understood that any change to the definition of Total Leverage Ratio, Total Net Leverage Ratio or in the component definitions thereof shall not constitute a reduction of interest or fees), provided that only the consent of the Required Lenders shall be necessary to amend Section 2.12(c) or to waive any obligation of the Borrowers Borrower to pay default interest at the rate set forth thereinpursuant to Section 2.11(c), (iii) postpone the scheduled maturity of any Loan, or the date of any scheduled amortization payment of the principal amount of any Term Loan under Section 2.08 or L/C the applicable Refinancing Amendment, or the reimbursement date with respect to any LC Disbursement, or any date for the payment of any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby, (iv) change Section 2.17(b2.16(b) or (c), Section 9.08(a) or the CAM Exchange in a manner that would alter the pro rata sharing of payments required thereby or change the order of application specified in Section 2.22(d) of this Agreement or Section 6.5 of the U.S. Guarantee and Security Agreementthereby, without the written consent of the Lenders holding a Majority in Interest of the outstanding Loans and unused Commitments of each Lender directly adversely affected therebyClass, (v) change any of the provisions of this Section 9.02without the written consent of each Lender directly and adversely affected thereby, (vi) change the percentage set forth in the definition of “Required Lenders” or the definition of “Alternative Currencies” or any other provision hereof of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights hereunder thereunder or make any determination or grant any consent hereunder thereunder, without the written consent of each LenderLender (or each Lender of such Class, (vi) release all or substantially all of as the Guarantors from their obligations under the U.S. Guarantee and Security Agreement and the Foreign Guarantee and Security Agreement without the written consent of each Lendercase may be), (vii) release all or substantially all the value of the Guarantees under the Guarantee Agreement (except as expressly provided in the Guarantee Agreement) without the written consent of each Lender (other than a Defaulting Lender) (except as expressly 164 provided in the Security Documents), (viii) release all or substantially all the Collateral from the Lien Liens of the Collateral Security Documents, without the written consent of each Lender or (viiiother than a Defaulting Lender), (ix) contractually subordinate change any provisions of any Loan Document in a manner that by its terms adversely affects the payment rights in respect of the Obligations payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Indebtedness or subordinate the Liens on the ABL Priority Collateral in favor of the Administrative Agent to Liens securing other Funded Debt without the consent of each Lender; provided, that no such change, waiver, discharge or termination shallClass, without the written consent of Lenders (other than a Defaulting Lender) holding a Majority in Interest of the Supermajority Lendersoutstanding Loans and unused Commitments of each affected Class, or (x) amend change the definition of “Supermajority Lenders” or (y) increase any advance rate or otherwise amend any rights of the following definitionsTerm Lenders to decline mandatory prepayments as provided in Section 2.09 or the rights of any Additional Lenders of any Class to decline mandatory prepayments of Term Loans of such Class as provided in the applicable Refinancing Amendment, without the written consent of a Majority in each case Interest of the effect Term Lenders or Additional Lenders of which would be to increase the amounts available for borrowing hereunder: Borrowing Basesuch Class, Eligible Accounts and Eligible Inventory (including, in each case, the defined terms used therein) (it being understood that the establishment, modification or elimination of Reserves, in each case by the Administrative Agent in accordance with the terms hereof, will not be deemed to require a Supermajority Lender consent)as applicable; provided, further, provided further that (1A) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, Agent or any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the relevant Agent or such Issuing Bank or the Swingline LenderBank, as the case may be be, and (2B) any provision of this Agreement or any other Loan Document may be amended by an agreement in writing entered into by Holdings, the Borrower and the Administrative Agent to cure any ambiguity, omission, defect or inconsistency so long as, in each case, the Lenders shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment. Notwithstanding the foregoing, (a) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent, Holdings and the Borrower (i) 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 and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion and (b) guarantees, collateral security documents and related documents executed by Foreign Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and the Borrowers maymay be, together with this Agreement, amended and waived with the consent of the other but Administrative Agent at the request of the Borrower without the need to obtain the consent of any other PersonLender if such amendment or waiver is delivered in order (i) to comply with local law or advice of local counsel, amend(ii) to cure ambiguities or defects or (iii) to cause such guarantee, modify collateral security document or supplement other document to be consistent with this Agreement and any the other Loan Document to cure Documents.
(c) In connection with any ambiguityproposed amendment, typographical or technical error, defect or inconsistency. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendmentmodification, waiver or consent hereunder which does not require termination (a “Proposed Change”) requiring the consent of each all Lenders or all directly and adversely affected Lender (it being understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote Lenders, if the consent of the Required Lenders hereunder requiring (and, to the extent any Proposed Change requires the consent of less than all affected LendersLenders holding Loans of any Class pursuant to clause (iv)., (ix) or (x) of paragraph (b) of this 165
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