Waivers and Agreements. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
Waivers and Agreements. The Guarantor hereby unconditionally:
4.01 Waives any requirement that the Lender first seek to enforce remedies against the Borrower or any other person or entity before seeking to enforce this Agreement against either Guarantor.
4.02 Waives any requirement that the Lender first make demand upon, or seek to enforce remedies against, to Guarantor, or against any other guarantor of any of the Guaranteed Obligations in any particular order, before demanding payment from, or seeking to enforce this Agreement against, the Guarantor or any other guarantor. The Guarantor acknowledges that the Lender, in the Lender's sole discretion, may enforce remedies against the Guarantor pursuant to this Agreement and not enforce similar remedies against any other guarantor with respect to the Guaranteed Obligations or vice versa. The Guarantor further acknowledges that the enforcement of remedies against the Guarantor in lieu of enforcing remedies against any other guarantor, or vice versa, shall not affect the validity or enforceability of the Lender's rights and/or remedies under this Agreement or any other guaranty agreement guarantying any of the Guaranteed Obligations.
4.03 Waives any requirement that the Lender first seek to enforce remedies against any property in which the Lender may have any interest securing any (a) indebtedness which either Guarantor has guaranteed under this Agreement, or (b) guaranty obligations of any other guarantor, or enforcing any such rights in any particular order, before demanding payment from, or seeking to enforce this Agreement against, either Guarantor.
4.04 Covenants that the Guarantor's obligation under this Agreement will not be discharged except by complete payment and performance of all of the Guaranteed Obligations, including, without limitation, all obligations of the Borrower under the Revolving Credit Note, and all other obligations of the Borrower under the Loan Agreement and the other Borrower Documents, or by payment in full by the Guarantor of the Guaranteed Obligations in accordance with the terms of this Agreement.
4.05 Agrees that this Agreement shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of the Revolving Credit Note, the Loan Agreement, any other of the Borrower Documents, or any limitation of the liability of the Borrower thereunder, or any limitation on the method or terms of payment thereunde...
Waivers and Agreements. The Guarantor hereby unconditionally:
(a) Waives any requirement that EKPC or Cooperative first seeks to enforce its remedies against Customer or any other person or entity before seeking to enforce this Guaranty Agreement against the Guarantor.
(b) Covenants that the Guarantor’s obligations under this Guaranty Agreement will not be discharged except by complete payment and performance of all the Guaranteed Obligations existing under the Industrial Power Agreement.
(c) Agrees that this Guaranty Agreement shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of, the Industrial Power Agreement; or any limitation of the liability of Customer thereunder; or any limitation on the method or terms of payment or performance assurance thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
(d) Waives any obligation that EKPC or Cooperative might otherwise have to marshal assets or to proceed against any particular persons or assets in any particular order.
Waivers and Agreements. (a) The covenants, agreements and obligations of each Borrower set forth herein are joint and several and shall be primary obligations of such Borrower, and, to the extent not prohibited by applicable law, such obligations shall be absolute and unconditional, shall not be subject to any counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment, reduction or defense (other than full and strict compliance by each Borrower with its obligations hereunder) based upon any claim such Borrower, any other Borrower or any other Person may have against the Administrative Agent, the Lenders or any other Person, and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by, any circumstance or condition whatsoever, foreseeable or unforeseeable and without regard to whether such Borrower, any other Borrower, the Administrative Agent or any Lender shall have any knowledge or notice thereof, including, without limitation:
(i) any termination, amendment, modification, addition, deletion or supplement to or other change to any of the terms of any Loan Document in accordance with its terms or any other instrument or agreement applicable to any of the parties hereto or thereto, or any assignment or transfer of any thereof, or any furnishing or acceptance or release of additional security for any Obligation or for the obligations of any Person under any Loan Document, or the failure of any security or the failure of any Person to perfect any interest in any collateral; any waiver of, or extension of time for the performance of, the payment, performance or observance of any of the obligations, conditions, covenants or agreements contained in any Loan Document, or any other waiver, forbearance, consent, extension, renewal, indulgence, compromise, release, settlement, refunding or other action or inaction under or in respect of any Loan Document or any other instrument or agreement, or under or in respect of any obligation or liability of each Borrower, or the Administrative Agent or any exercise or non-exercise of any right, remedy, power or privilege under or in respect of any such instrument of agreement or any such obligation or liability;
(ii) any failure, omission or delay on the part of the Administrative Agent to enforce, assert or exercise any right, power or remedy conferred on it in any Credit Document to give notice to any Borrower of the occurrence of an Event of Default;
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Waivers and Agreements. (a) The Administrative Agent and the Lenders hereby waive the provisions of Sections 9.1, 9.3 and 9.5 and any Default or Event of Default which shall or may have occurred as a result of non-compliance therewith solely for the Waiver Calculation Period; PROVIDED, that:
(i) Borrower's EBITDA shall not be less than (A) $6,000,000 for the fiscal quarter ending September 30, 1999 and (B) $7,500,000 for the fiscal quarter ending December 31, 1999;
(ii) the waivers set forth herein shall terminate and an Event of Default shall be deemed to have occurred and be continuing under the Credit Agreement on the earlier to occur of (i) the date which is no later than five (5) Business Days after the date on which the Agreement and Plan of Merger dated as of October 5, 1999 by and among UICI, UICI Acquisition Co. and the Borrower is terminated or (ii) February 10, 2000 if the transactions contemplated by the Merger Agreement shall have failed to be consummated on or prior to such date (the "Waiver Termination Date"); PROVIDED FURTHER, that nothing set forth herein shall be deemed to be a consent to or approval of the Merger, which Merger is prohibited by the terms and conditions set forth in the Credit Agreement;
(iii) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not be permitted to make the dividends otherwise permitted pursuant to Section 10.7(d) of the Credit Agreement;
(iv) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not be permitted to make the investments otherwise permitted pursuant to Section 10.4(g); and
(v) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not permit Capital Expenditures to exceed $8,000,000 in the aggregate for any period of four (4) consecutive fiscal quarters ending during such period.
(b) The Administrative Agent and the Lenders hereby acknowledge and agree that the calculation of Net Income for the purposes of calculating the minimum EBITDA required pursuant to clause (a)(i) above shall be increased by (i) $5,658,000 in connection with a non-recurring non-cash charge taken during the fiscal quarter ending September 30, 1999 with respect to reserves established for litigation claims in accordance with FASB #5, (ii) $973,000 in connection with a non-recurring cash gain taken during the fiscal quarter ending September 30, 1999 and (iii) approxi...
Waivers and Agreements. The Guarantor hereby unconditionally:
a. Waives any requirements that EKPC or Cooperative first seeks to enforce its remedies against Customer or any other person or entity before seeking to enforce this Guaranty Agreement against the Guarantor.
b. Covenants that the Guarantor’s obligations under this Guaranty Agreement will not be discharged except by complete payment and performance of all the Guaranteed Obligations existing under the Industrial Power Agreement.
c. Agrees that this Guaranty Agreement shall remain in full force and effect without regard to, and shall not be affected or impaired by any invalidity, irregularity or unenforceability in whole or in part of, the Industrial Power Agreement; or any limitation of the liability of Customer thereunder; or any limitation on the method or terms of payment or performance assurance thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
d. Waives any obligation that EKPC or Cooperative might otherwise have to marshal assets or to proceed against any particular persons or assets in any particular order. Xxxxx X. Xxxxxxxx Executive Director
Waivers and Agreements. Maker and all endorsers, sureties and guarantors, jointly and severally: (a) waive presentment for payment, demand, notice of demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and all other notices (not expressly provided for in this Note) in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note; and (b) agree that the liability of each of them shall be unconditional without regard to the liability of any other party and with respect to any such endorser, surety or guarantor, shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee at any time; such endorsers, sureties and guarantors, jointly or severally, further (c) consent to any and all indulgences, extensions of time, renewals, waivers or modifications granted or consented to by Payee at any time; and (d) agree that additional makers, endorsers, guarantors or sureties may become parties to this Note without notice to them or affecting their liability under this Note.
Waivers and Agreements. Except as otherwise expressly provided in this Agreement, each Credit Party hereby waives notice of acceptance of its joint and several liability, notice of any Advances or Letters of Credit issued under or pursuant to this Agreement, notice of the occurrence of any Default, Event of Default, or of any demand for any payment under this Agreement, notice of any action at any time taken or omitted by Agent or Lenders under or in respect of any of the Obligations, any requirement of diligence or to mitigate damages and, generally, to the extent permitted by applicable law, all demands, notices and other formalities of every kind in connection with this Agreement (except as otherwise provided in this Agreement). Each Credit Party hereby waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Agent or Lenders to marshal assets or to proceed against any other Credit Party, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against such Credit Party. Each Credit Party waives all defenses available to a surety, guarantor or accommodation co-obligor other than payment in full of all Obligations. Each Credit Party hereby assents to, and waives notice of, any extension or postponement of the time for the payment of any of the Obligations, the acceptance of any payment of any of the Obligations, the acceptance of any partial payment thereon, any waiver, consent or other action or acquiescence by Agent or Lenders at any time or times in respect of any default by any Credit Party in the performance or satisfaction of any term, covenant, condition or provision of this Agreement, any and all other indulgences whatsoever by Agent or Lenders in respect of any of the Obligations, and the taking, addition, substitution or release, in whole or in part, at any time or times, of any security for any of the Obligations or the addition, substitution or release, in whole or in part, of any Credit Party. Without limiting the generality of the foregoing, each Credit Party assents to any other action or delay in acting or failure to act on the part of Agent or any Lender with respect to the failure by any Credit Party to comply with any of its respective Obligations, including, without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or to comply fully with applicable laws or regulations thereunder, which might, ...
Waivers and Agreements. Agent shall have received the Waivers and corresponding landlord, mortgagee, warehouseman, consignment, processing or similar agreements reasonably requested by and satisfactory to Agent with respect to all premises leased by Loan Parties or at which Inventory is located as set forth on Schedule 8.1(t) except for those premises or locations at which less than Fifty Thousand and 00/100 Dollars ($50,000.00) of Inventory is located and except for those premises or locations for which the Agent has instituted reserves which are reasonably satisfactory to the Agent;
Waivers and Agreements. (a) Pursuant to Section 10.10 of the Indenture, the Company has delivered to the Trustee on the date of this Supplemental Indenture an Officers’ Certificate setting forth a temporary increase in the Conversion Rate and a corresponding decrease in the Conversion Price as determined by the Company pursuant to and in accordance with the provisions of Section 10.14 of the Indenture, to be effective during the period set forth on such Officers’ Certificate (the “Adjustment Period”). Pursuant to Section 9.02 of the Indenture, Holders representing all of the issued and outstanding Securities hereby waive: (i) the compliance by the Company of any and all of the notice, filings, mailing or notice period requirements set forth in Sections 10.10 and 10.14 of the Indenture in connection with the adjustments to the Conversion Rate and Conversion Price as set forth in such Officers’ Certificate delivered to the Trustee on the date of this Supplemental Indenture and (ii) the requirement that the Company pay to the Holders a Make Whole Premium upon conversion of the Securities (with respect to the $590,000 in aggregate principal amount of Securities or portions thereof indentified in column 3 of Annex I of such Officers’ Certificate) by such Holder pursuant to Article X of the Indenture or under the requirements set forth in paragraph 8 of such Securities during the Adjustment Period for any conversions made at the Conversion Rate and Conversion Price as set forth in the Officers’ Certificate delivered to the Trustee and any Conversion Agent on the date of this Supplemental Indenture.
(b) Pursuant to the Officers’ Certificate, and only during the Adjustment Period, the Company has waived the requirement that a Holder comply with any of the conditions set forth in clause (ii) or (iii) of Section 10.02 of the Indenture and the corresponding requirements set forth in paragraph 8 of the Securities prior to the Conversion Date. The Holders hereby agree to use commercially reasonable efforts to satisfy the requirements of such clauses promptly after the Conversion Date to the extent any such documents are reasonably requested by the Conversion Agent to be delivered to the Conversion Agent.
